Complainant

Respondent

Parties

Lauren  McBride

FSR Atlantic Limited t/a Adhd Now

Representatives

  Self-represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060365-001

04/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060365-002

04/12/2023

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

CA-00060365-003

04/12/2023

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

CA-00060365-004

04/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060365-005

04/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060365-006

04/12/2023

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

CA-00060365-007

04/12/2023

The Complainant alleges several breaches of her statutory employment rights. The Respondent submits the Complainant was at all times employed as an independent contractor.

Evidence of the Complainant (under affirmation)

At the outset of the hearing, the Complainant submitted that she understood she was a self-employed contractor and not an employee and that she could work for anyone else. The Complainant acknowledged that the contract she signed was the document submitted by the Respondent prior to the hearing. This contract was titled: ‘Contract For Services with ADHD NOW (FSR Atlantic LTD)’.

The Complainant outlined that she responded to an advertisement on a job vacancy website for the position of Assistant Psychologist. The Complainant did not retain a copy of the job advertisement. She had an online meeting with a ‘Mr M’ in September or October 2023 for approximately 15 minutes. He asked how much she wanted per hour. The Complainant agreed with Mr M that she would charge €30 per hour.  Mr M told her that he would send her a contract. The Complainant outlined that she thought when she was interviewed for the position of Assistant Psychologist, that she was being hired as an employee, however, after discussing the contract with her father, she understood that she was being hired as a contractor and not an employee. The Complainant understood that she was responsible for invoicing the Respondent and paying any tax due. The Complainant outlined that she was working for other organisations prior to signing the Contract For Services with the Respondent.

Mr M verbally advised the Complainant that she could work full-time or part-time hours. The Complainant told Mr M that her preference was to work full-time hours. Mr M later confirmed to the Complainant that she would get work for 7 hours per day/35 hours per week. However, this did not materialise. Mr M requested that the Complainant change the hours she was available to later in the day. Instead of working between the hours of 9am to 4pm, she would make herself available between the hours of 4pm to 9pm daily. The Complainant agreed to this. However, the Complainant still did not receive work during these hours. Mr M then agreed to engage the Complainant for 2 hours per day. But this did not materialise either. Since signing the contract on 8 October 2023 until 3 November 2023, the Complainant was offered only 8 hours work in total. Further, she received work for 30-minute sessions (initial screening appointments), plus 15 minutes administration time per session. The hourly rate was pro-rated accordingly. The Complainant outlined that she had not agreed to a pro-rated hourly rate. The Complainant submitted that she was given the impression that she would get 35 hours work per week at a rate of €30 per hour but instead she was given 45-minute sessions and a reduced rate of €22.50. She submitted that was never discussed with her and she did not agree to that. The Complainant also completed 4 hours training for which she was not paid. She said she was owed €120 for this time, and she was owed for the short-fall in the hourly rate of €7.50 for five sessions worked.

The Complainant outlined that her issue with the Contract For Services was that it required her to maintain a minimum availability of 10 hours per week on the platform. The Complainant submitted “I had difficulty with this because I was making myself available but no work was being provided. I could have spent the time with family and doing other things.” The Complainant stated that she should have been paid for 25% of the hours she was required to make herself available where no work was provided to her.

The Complainant spoke with Mr M and he offered her work which would require her to diagnose clients. The Complainant outlined that she refused this work as she was not qualified to do work of this kind. After this conversation she was offered no further work with the Respondent. The Respondent offered training so she could diagnose clients, but the Complainant outlined that first, this was unpaid so it was unacceptable to her, and second, a person cannot be ‘trained’ to diagnose clients. Instead you must be qualified to do so. Mr M “knew from the beginning I was not a Clinical Psychologist and yet he offered hourly work of this kind.” The Complainant submitted that she believes she is “still an employee of the Respondent and should be receiving work from them”.

The Complainant stated that she was unavailable for work on one occasion when the Respondent offered her work. The Complainant confirmed that there were no consequences for refusing any hours offered and she submitted “absolutely I understood that I could make myself unavailable for work” and the hours would then be offered to someone else on the panel of Psychologists retained by the Respondent. The Complainant submitted that she didn’t think she would be paid for holidays or public holidays and that Mr M said to her she was welcome to work anywhere else also. The Complainant worked from home and used her own laptop and headphones. She was given two ADHD checklists to use during the consultation sessions. She received no handbook or policies and procedures and had no interaction with any other persons in the company other than Mr M and Mr Gavin. On one occasion she met another Psychologist for training purposes. Although she did invoice the Respondent for her time spent training (4 hours), she was not paid for this. The Complainant confirmed that in the event she did not receive enough hours from the Respondent, she would have worked in home care.

Evidence of Mr Gavin (under affirmation)

The Complainant is not an employee of the Respondent. The contract she signed was a commercial agreement. Mr Gavin opened a document titled ‘Contract For Services with ADHD NOW (FSR Atlantic LTD)’ which was made between the parties and signed by the Complainant on 8 October 2023. The hearing was directed to clause 9 which was read out by Mr Gavin as follows:

“No Employment: Nothing in this Agreement shall render or be deemed to render the Contractor an employee or agent of the Company. This Agreement does not create any mutuality of obligation between the Contractor and FSR Atlantic LTD T/A ADHD Now.” Mr Gavin also directed the hearing to clause 5 “Invoices and Payment”. He outlined that the Complainant was rendering services for which she was required to invoice the company.

The Complainant agreed to €30 per hour. The Respondent thought that the Complainant could also diagnose clients which is an hourly session. But as she could only screen clients, she was offered 30-minute sessions (plus 15 minutes administration per session), and therefore the hourly rate of €30 was pro-rated accordingly. The Respondent offered to train the Complainant but the training hours would be unpaid. This was not agreeable to the Complainant.

Mr Gavin confirmed that the Respondent does not employ any persons and all persons engaged by the Respondent are engaged under a Contracts For Services. None of the Psychologists retained by the Respondent work exclusively for the Respondent.

CA-00060365-001  - Complaint under the Payment of Wages Act, 1991

Relevant Law:

Payment of Wages Act 1991 (“the 1991 Act”)

Section 1(1) of the 1991 Act defines a "contract of employment" as meaning:

“(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing” (emphasis added).

Section 1(1) of the 1991 Act defines an employee as:

“. . .  a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer  . . .  ” (emphasis added).

Section 1(1) of the 1991 Act defines an employer as:

"employer", in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment . . . “(emphasis added).

Section 5(1) of the 1991 Act provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. 

Section 5(2) of the 1991 Act provides:

“An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.” (emphasis added).

The 1991 Act envisages two situations with respect to a deduction. First, where the employee receives less wages than are due. Second, where the employee receives no wages at all. Section 5(6) of the 1991 Act provides:

“(a) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings:

It is the Respondent’s case that because the Complainant is engaged under a Contract For Services, she is not an employee within the meaning of s 1(1) of the 1991 Act. As noted above, s 1(1)(b) of the 1991 Act defines a "contract of employment" as including any contract whereby an individual agrees with another person to do or perform personally any work or service for a third person whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual. Further, the person liable to pay the wages of the individual in respect of the work or service is regarded for the purposes of the 1991 Act to be the employer. I am satisfied the Complainant is engaged under a ‘contract of employment’ within the meaning of s 1(1) of the 1991 Act as the Complainant agreed with the Respondent to personally perform work for a third person (clients of ADHD Now). I am satisfied the Respondent’s status by virtue of the contract is not that of a client or customer of the Complainant. Therefore, I find the Respondent is the Complainant’s employer for the purposes of the 1991 Act and the Respondent is liable to pay the wages of the Complainant. Wages is defined under s(1)(1) of the 1991 Act as “. . . any sums payable to the employee by the employer in connection with his employment . . . . ”

Claim with respect to a deduction on the hourly rate:

As per the findings in Balans, I must now establish the wages properly payable before considering whether a deduction was made.

Clause 4 of the Contract For Services agreed between the parties provides: “Fees are listed in Annex B Document . . .  Annex B: Pricing . . . All sessions are invoiced at a rate of €30 per hour of work performed as pre-agreed with FSR Atlantic Limited.”

It was common case the Complainant worked 5 x 45-minute sessions for which she was paid €22.50 per session. It was the Complainant’s case that she agreed an hourly rate of €30 and that she did not agree to the pro-rating of this hourly rate. The Complainant submitted that she is owed wages of €7.50 for each of the five sessions worked (a total amount of €37.50). It was common case that when the Complainant provided her services, she worked 45-minute sessions and was paid accordingly. The contract provides for “. . . a rate of €30 per hour of work performed . . . ” (emphasis added). Therefore I find as the Complainant worked pro-rated hours, the full hourly rate of €30 was not properly payable. The Complainant received the correct pro-rated amount of €22.50 per session worked. Therefore I find the Respondent did not make a deduction from the Complainant’s wages contrary to s 5 of the 1991 Act and accordingly this part of the Complainant’s complaint is not well-founded.

Claim with respect to a deduction for time spent training:

It was common case the Complainant completed 4 hours training for which she was not paid. The Complainant submitted she was owed €120 for this time spent training. She outlined that she did not agree to not charging for this time and in fact invoiced for this time but was told to amend her invoice to remove the charge for the training. This was not refuted by the Respondent.

I find the training provided by the Respondent to the Complainant in the use of the screening tools was necessary to the employment (i.e., to enable the Complainant to conduct the initial assessment consultation with clients). Further, I find the training course provided by the Respondent to the Complainant constitutes the provision of a service by the Respondent to the Complainant within the meaning of s 5(2)(b) of the 1991 Act, and for that reason, the Respondent was required to comply with the conditions set out in s 5(2) of the 1991 Act. Section 5(2)(b) of the 1991 Act prohibits an employer from making a deduction in respect of any service provided to the employee by the employer where the provision of which is necessary to the employment. There is an exception to this mandatory prohibition, but the employer can only avail of this exception if all the conditions provided for at (i) to (vii) of s 5(2)(b) of the 1991 Act are complied with. The first of which, at s 5(2)(b)(i), is that the deduction must be required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee. I note that there is no express provision in the contract, nor did the Respondent contend that there was an implied provision, requiring or authorising the non-payment of wages with respect to time spent training as required at s 5(2)(b)(i). Therefore, as the exception has several cumulative requirements, and the Respondent does not satisfy the first of those requirements, it cannot avail of the exception provided for within s 5(2)(b).

As the non-payment of wages for four hours spent training was not contractually provided for, nor do I find it was due to a computational error (as provided for at s 5(6)(b) of the 1991 Act), I find 4 hours wages is properly payable to the Complainant, and the failure to pay these 4 hours wages  constitutes an unlawful deduction within the meaning of s 5(2)(b) of the 1991 Act. Accordingly I find this part of the complaint to be well-founded. In accordance with s 6(1) of the 1991 Act, I direct the Respondent to pay the Complainant compensation of €120.

CA-00060365-006 - Complaint under the Payment of Wages Act, 1991

I have made an award under CA-00060365-001. This is a duplicate complaint, and therefore I make no award under this complaint.

CA-00060365-003; CA-00060365-004 & CA-00060365-007 - Complaints under the Terms of Employment (Information) Act, 1994

Relevant Law:

Terms of Employment (Information) Act, 1994 (“the 1994 Act”).

The 1994 sets out an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. Section 1 provides:

"contract of employment" means—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby — (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written . . . (emphasis added).

““employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer . . . ” (emphasis added).

““employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer” (emphasis added).

Section 2(1) of the 1994 Act provides:

“This Act, other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than 4 consecutive weeks.” (emphasis added).

Section 3(1) if the 1994 Act provides:

“ An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment . . . .”

Section 5(1) of the 1994 Act provides:

“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.” (emphasis added).

Section 6F of the 1994 Act provides inter alia:

“(1) Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

(2) An employee may, once in any 12 month period, request a form of employment in accordance with subsection (1).

(3) An employer shall provide the reasoned written reply referred to in subsection (1) to an employee within one month of the request by the employee . . . .” (emphasis added).

Section 6G of the 1994 Act provides in relation to “mandatory training”:

“Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall —

(a) be provided to the employee free of cost,

(b) count as working time, and

(c) where possible, take place during working hours.” (emphasis added)

Section 7(1)(2) of the 1994 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G,  or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

Findings:

I am satisfied the Complainant is engaged under a contract where she agreed with the Respondent to personally execute work or services for the Respondent. Therefore I find the Complainant is engaged under ‘a contract of employment’ for the purposes of the 1994 Act. Further, I am satisfied the Complainant meets the service requirement provided for at s 2(1) of the 1994 Act.

CA-00060365 – 003

This complaint concerns the following: “my employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of my request”.

The Complainant referred this complaint to the WRC on 4 December 2023. She had not at this time completed 6 months employment with the Respondent as required under s 6F of the 1994 Act. Therefore I find this complaint is not well-founded.

CA-00060365 – 004 

This complaint concerns the following: “I was not notified in writing of a change to my terms of employment”.

The Complainant submitted that she was given the impression that she would get 35 hours work per week at a rate of €30 per hour but instead she was given 45-minute sessions and a pro-rated hourly rate of €22.50. She submitted that was never discussed with her and she had not agreed to that. The Respondent did not refute this.

I have found the Complainant is engaged under a contract of employment for the purposes of the 1994 Act. The Complainant is therefore entitled to receive a statement of employment as provided for under s 3(1) of the 1994 Act. Section 3(1) sets out the particulars which must be included in this statement. Section 5(1) of the 1994 Act requires an employer to notify an employee in writing of the nature and date of a change to any of the particulars of the statement furnished by an employer under ss 3, 4 or 6 of the 1994 Act on the day on which the change takes effect. As this statement (containing the particulars required at s 3(1) of the 1994 Act) was not given to the employee as required under the 1994 Act, I cannot find that the Respondent breached s 5(1) of the 1994 Act, as it cannot be said the Respondent failed to notify the Complainant of changes to a statement that was not given to the Complainant in the first place. Therefore, I find that this complaint is not well-founded.

CA-00060365-007

This complaint concerns the following: “My employer has not provided training to me free of cost in contravention of the Act or this training was not counted as worktime time and should have taken place during working hours”.

Section 6G of the 1994 Act applies to “mandatory training” which the employer is required by law or by a collective agreement to provide. The Complainant provided no evidence that the four hours training she completed was required by law, or by virtue of an expressed term of the written contract, or by a collective agreement. Therefore, I find this complaint is not well-founded.

CA-00060365-002 & CA-00060365-005 - Complaints under the Organisation of Working Time Act, 1997

Relevant Law:

Organisation of Working Time Act, 1997(“the 1997 Act”)

The 1997 Act makes provision inter alia in relation to the conditions of employment of employees and the protection of the health and safety of employees.

The definition of a ‘contract of employment’ under the 1997 Act differs from that provided for under the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994 (both of which was considered above).

Section 2 of the 1997 Act provides:

“contract of employment” means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract), whether the contract is express or implied and if express, whether it is oral or in writing” (emphasis added).

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer . . . ”.

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer”.

Section 18 of the 1997 Act provides:

“ (1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours ("the contract hours"),

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to that week (whether or not the number of those occasions or the circumstances otherwise touching the engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in that week).

(2) In a contract for a certain number of hours of work referred to in paragraphs (a) and (c) of subsection (1), the number of hours concerned shall be greater than zero.

(3) Notwithstanding subsection (1), subsection (2) shall not apply to—

(a) work done in emergency circumstances, or

(b) short-term relief work to cover routine absences for that employer.

(4) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent of the hours for which such work has been done in that week,

then the employee shall, subject to this section, be entitled—

(i) in a case where the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

(ii) in a case where the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be,

and the minimum payment shall be calculated as 3 times the national minimum hourly rate of pay within the meaning of the National Minimum Wage Acts 2000 and 2015 or 3 times the minimum hourly rate of remuneration established by an employment regulation order, for the time being in force, on each occasion that this occurs” (emphasis added).

In Contract Personnel Marketing Ireland v. Marie Buckley (DWT1145), while the complainant had the option to refuse or accept any hours offered, there was no contractual provision requiring the employee to make themselves available for a defined number of hours. The Court was not satisfied that s 18 of the 1997 Act applied to the complainant in that case.

Section 27(3) of the 1997 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Section 41(6) of the Workplace Relations Act, 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Findings:

The complainant must be engaged under a ‘contract of employment’ within the meaning of the 1997 Act to come within the scope of the 1997 Act. For the purposes of the 1997 Act, a contract of employment exists if the Complainant is engaged under a ‘contract of service’ or is engaged by an agency within the meaning of the Employment Agency Act, 1971. I am satisfied that the Respondent is not an agency within the meaning of the Employment Agency Act, 1971.

I must now consider if the Complainant was engaged under a ‘contract of service’. It was common case that the Complainant signed a ‘contract for services’; however, it is not always the case that written contracts reflect the true nature of the employment relationship. The distinction between contracts ‘of’ service and contracts ‘for’ services is not always obvious. As noted by the Labour Court in Associated Newspapers Ireland Limited t/a DMG Media Ireland v. Joseph Dunne UDD2260, the determination of an individual’s employment status in the context of ascertaining whether that individual has standing to pursue claims under employment legislation is a mixed question of fact and law.

There is a considerable amount of case law on the ‘tests’ to be applied to determine whether a contract is a contract ‘of’ service or a contract ‘for’ services. The judgment of the Supreme Court in Henry Denny & Sons v. The Minister for Social Welfare IESC 9 [1998]is a leading authority on the issue of determining issues of employment status. The Supreme Court adopted an approach often referred to as the ‘mixed test’ which required a consideration of a myriad of factors including inter alia the degree of control exercised by the party for whom work is being done over the party doing the work; the level of integration of the person into the business; and whether the party could be said to be in business of his/her own account.

More recently, in a tax related case, Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, Murray J for the Supreme Court rejected the notion of a ‘test’ to determine employment status and the over reliance placed on ‘mutuality of obligation’ in determining employment status. Murray J concluded that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation” [at 214]. He noted that when deciding employment over a period, the overarching or umbrella contract may be important (this matter was not considered further in the case). Murray J outlined that the framework in Ready Mixed Concrete (South East) Ltd. v. Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v. Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remain a “reliable structure for the identification of a contract of employment” [at 253], concluding that the question of whether a contract is one ‘of’ service or ‘for’ services should be resolved by reference to the following five questions [at 253]:

1.       “Does the contract involve the exchange of wage or other remuneration for work?

2.       If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

3.       If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

4.       If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

5.       Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.”

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service. If all three questions are answered positively, the decision maker must then proceed to look at all the facts to ascertain the true nature of the relationship. It is important to note that Murray J emphasised that the case related only to tax laws and does not determine continuity of service for the purposes of employment rights legislation. 

It is worth noting some of the facts of the above case which concerned the engagement of drivers to deliver pizzas on behalf of the company. The written agreement set out inter alia the requirement of the ‘independent contractor’ to provide his own vehicle (the contractor was responsible for the maintenance and insurance of same and had the option to rent a vehicle from the company and obtain business insurance for a fee); the wearing of branded clothing by the contractor in return for a fixed payment; payment on invoice per successful delivery at an agreed rate; no guarantee by the company of a minimum number of hours work; the responsibility of the contractor for risks and rewards; the general freedom of the contractor to engage in other delivery-type work for other companies; the right of the contractor to engage a substitute in the event of their unavailability; the freedom of the contractor to make themselves available as many or little hours as desired and a requirement on the contractor to notify of their unavailability in advance.

In practice, the drivers were required to complete an ‘availability sheet’ one week in advance, which was then used to roster them on various shifts. They were required to wear branded clothing while making deliveries. On the commencement of a shift, they clocked in, arranged their cash float, delivered pizzas, and clocked out at the end of the shift having returned the float. The contractors were restricted in the number of deliveries they could make per delivery run and on occasion they were required to perform work which was not provided for in the contract (make up pizza boxes). Invoices were often prepared by the company for the drivers to sign. The court decided the case only based on the work done under the individual rotas/shifts (rather than the over-arching or umbrella contract), concluding that the drivers were engaged under a contract of service once rostered for and carrying out the work.

With respect to this complaint, as noted above, it is well established that every case must be considered on its own facts with no one clear-cut ‘test’ to be applied. As the written contract may not reflect the actual nature of the relationship, consideration must be given to what was happening in practice to establish the true nature of the relationship. There is a short-period of time to consider in this complaint: the contract between the parties was signed on 8 October 2023 and no further work was offered to the Complainant after 3 November 2023. During that period, the Complainant was required to provide her services for 8 hours only (this included several hours of training).

The Respondent business is an online platform which provides an on-line ADHD initial assessment, diagnosis, and an optional follow-up plan. The Respondent engages a panel of psychologists, clinical psychologists, and psychiatrics on an independent contractor basis to provide these services on its online platform. There is no physical business premises. Generally, all services are offered on-line. The Respondent submitted that it employs no ‘employees’. The Respondent’s case, both in its written submission and in oral evidence, is that the written contract states that the Complainant is an independent contractor and that this document expressly denies an employer-employee relationship.

The Complainant’s evidence is that following a 15-minute conversation with Mr M she understood that she was being hired as an employee, but after discussing the written contract with her father, she came to understand that she had in fact been engaged as an ‘independent contractor’. At the outset of the hearing the Complainant agreed that she was engaged on a “self-employed” basis, but argued during the hearing that she was in fact an employee, and remains an employee given the contract was not terminated. The Complainant outlined that she had particular difficulty with the contractual requirement to make herself available for a minimum of 10 hours per week but her services were not required. She submitted that she should have been paid for 25% of the hours she was required to make herself available where no work was provided to her.

The written contract provided that the Complainant was contracted as a psychologist to provide her services in relation to  assessing, diagnosing, and treating ADHD in return for a fixed hourly rate. The Complainant was required to invoice for hours worked and manage her own tax affairs. The hourly rate could be reviewed at any time at the discretion of the Respondent. The contract was silent on whether the Complainant could work elsewhere or whether she could substitute the work. The written contract provided that the Complainant was responsible for managing her own calendar and availability. The Complainant was required to make herself available on the platform for a minimum of 10 hours per week. Failure to do so could result in termination of the agreement. This contract between the parties was to continue indefinitely until either party served one-months’ written notice of termination to the other party.

The actual dealings between the parties which spanned a mere two months, reveal that the Complainant was not free to substitute the work but she was verbally advised (after she complained that the Respondent had failed to give her the hours which had been verbally promised), that she was free to work for any other organisation. Further, on the one occasion she refused hours, she suffered no sanction for that refusal.

I am satisfied the parties entered into a binding contractual agreement which involved the exchange of remuneration for work. It is not contested that the Complainant agreed to provide her own personal services to the Respondent. While the hours verbally promised to the Complainant did not materialise, when she did provide her services, she was paid for that work (albeit at a pro-rated amount).

I am satisfied the Respondent exercised sufficient control over the Complainant to render the agreement one that is capable of being an employment agreement i.e., ‘a contract of service’. The Respondent directed the Complainant on when, what, and how the assessments were to be done. The Respondent solely determined how clients were to be assessed and the duration of that assessment, and the Respondent required the Complainant to use the Respondent’s assessment tools for this purpose. The Respondent provided specific training in this regard. The Complainant was directed to spend 30 minutes on the assessment and 15 minutes on administration. She was required to maintain records of each client and to retain these records (though they remained the property of the Respondent). The Complainant was not free to contract out the work or substitute another party for herself. The Complainant invoiced for a full hour at the agreed rate of €30 but the Respondent pro-rated the agreed hourly rate to reflect the 45-minute assessment sessions worked by the Complainant. The Complainant had no control over this, and little control over what she could invoice the Respondent for. When the Complainant invoiced for time spent training on the Respondent’s assessment tools, the Respondent determined that no payment would be made for these hours. The Complainant was contractually required to maintain a weekly minimum of 10 hours availability on the platform, which I find is more indicative of an employee-employer relationship. It was common case the Complainant was promised hours of work. This is also more indicative of a contract of service. While the Complainant used her own laptop and was free to work from a location of her choice (as there was no Respondent premises), I am satisfied in the round, for all the reasons above, the Respondent exercised a significant degree of control in relation to the place, time, and way the work was to be performed, and in relation to what the Complainant was to be paid for.

As noted by Murray J in Karshan, control is a mandatory element of the contract of employment, it does not just extend to operational direction but also economic risk and the position of the worker in the business of the employer. I am not satisfied, considering the short term of the engagement I am examining and in relation to the distinct periods of time when carrying out work for the Respondent, that the Complainant was in business of her own account. She had no opportunity to vary the level of profit derived from the work she performed. The assessment work she performed was integral to the work of the Respondent and not an accessory to it.  While she may have brought her psychology qualification and personality to her work, the assessments completed on behalf of the Respondent was in every sense work for the Respondent and was solely directed towards advancing its business, and not the Complainant’s. There was no capacity for the Complainant to profit in any material way from her own skill. Despite the freedom to work for others and the discretion to make herself unavailable for work, she did not risk her own capital, and her opportunity to generate or maximise profit did not in any way depend on the way she managed her work. Instead the amount of money the Complainant earned was determined exclusively by the extent to which her services were availed of by the Respondent.

In conclusion, I note that the written contract agreed and understood by the parties was a ‘Contract For Services’. It was drafted with a view to ensuring the Complainant was regarded as an independent contractor. As noted in Denny, while this is a factor I must have regard to, it is not decisive of the issue. The uncontested evidence of the Complainant is that the Respondent committed to providing full-time hours to the Complainant, and the Complainant’s evidence is that she would have worked exclusively for the Respondent. The contract agreed obliges the Complainant to maintain a weekly minimum of 10 hours availability on the platform on an on-going basis. It was only when the Respondent failed to offer 37 hours work per week as verbally promised, and in fact offered little work at all, was the Complainant advised that she was free to work elsewhere. Over the short period the Complainant actually completed work for the Respondent and was paid accordingly, I am satisfied that the Respondent exercised sufficient control over the Complainant to render the relationship one which was capable of being a contract of service. Further, the work performed by the Complainant was integral to the business of the Respondent and it cannot reasonably be said that, from 8 October to 3 November 2023,  the Complainant was in business of her own account.

For the reasons set out above, having considered the entire factual matrix as presented by both parties, I find most of the evidence points towards the Complainant being engaged under a contract of service. Section 2(a) of the 1997 Act provides that a “contract of employment” includes ‘a contract of service’. Therefore I find the Complainant is engaged under a contract of employment for the purposes of the 1997 Act.  

I will now consider the individual complaints presented under the 1997 Act.

CA-00060365-002

This complaint relates to: “I was not paid for 25% of the time I was required to be available for work that did not then arise (zero hours).

Section 18 of the 1997 Act stipulates that an employee must be paid when their contract requires them to be available for a specified or unspecified number of hours, even though they may not actually be required to work. An employee is entitled to either 15 hours’ pay or 25% of the “contract hours” whichever is the lesser.

I am satisfied the Complainant was required to make herself available a defined number of hours per week in accordance with clause 3.5 of the written contract. Clause 3.5 reads:

“The Psychologist agrees to maintain a minimum availability of 10 hours per week on ADHDNow.ie. The Psychologist acknowledges that failure to meet this requirement may result in termination of their contract with the Company”.

I am satisfied the Complainant comes within the scope of s 18(1)(a) of the 1997 Act. I am satisfied the Complainant was not engaged to do work of a casual nature on any occasion.

Section 18(4)(a) of the 1997 Act provides that if an employer does not require the employee to work in any week at least 25% of the contracted hours, then the employee is entitled to be paid the pay they would have received if they had worked for the employer in that week, either an amount equivalent to 25% of the contracted hours or 15 hours (whichever is the lesser). Where an employee has been required to work in a week less than the percentage of hours provided for at s 18(4)(a) or (b), the pay the employee is entitled to for that week must be calculated on the basis that they worked for the employer in that week the percentage of hours referred to at 18(4)(a) or (b). Section 18(4) also provides that the minimum payment shall be calculated as 3 times the national minimum hourly rate of pay within the meaning of the National Minimum Wage Act 2000 -2015. The relevant national minimum wage (NMW) for the purposes of this claim is €11.30.

Based on the foregoing, I am satisfied that in this case, subject to the minimum hourly rate of 3 times the national minimum hourly rate of pay, in the weeks the Complainant was required to be available for 10 hours, but was not required to work, she is entitled to 2.5 hours’ pay. I am further satisfied that in any week the Complainant was required to work, but those hours of work were less than 25% of the contract hours (i.e., 2.5 hours) she must be paid for no less than 2.5 hours (i.e., if an employee works some hours but less than 25% of those for which they were contracted to be available then the employer must compensate the employee for the difference).

Having regard to s 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of a claim is confined to the 6-month period ending on the date on which the complaint was presented to the WRC. The Complainant referred this complaint to the WRC on 4 December 2023. Therefore the cognisable period covered by this claim is 5 July 2023 to 4 December 2023. This complaint relates to the period of 8 October 2023 to 3 November 2023, and therefore falls within the cognisable period. During the period of 8 October 2023 to 3 November 2023 the Complainant was required to provide her services for 8 hours in total. She refused hours on one day only within that period. After 3 November 2023 the Complainant was not offered any further hours. It was common case that although the Complainant was not offered hours after the 3 November 2003, the contract agreed by the parties was not terminated by either party in accordance with the provisions of the contract (i.e., clause 8 which required not less than one month’s notice in writing to the other party) or at all.

I calculate (taking into consideration the award I have already made under the 1991 Act with respect to wages due for time spent training), the Complainant is entitled to a payment of €135.60 for the month of October 2023.

The Complainant was not required to work between 4 November 2023 to 4 December 2023 (the latter date being the date the complaint was presented to the WRC). I calculate the Complainant is owed a further amount of €300 (25% of the contracted hours [10 hours] = 2.5 hours x €30 [agreed hourly rate] = €75 x 4 weeks = €300) for the period between 4 November 2023 to 4 December 2023.

In summary, I find this complaint under the 1997 is well-founded and I require the employer to comply with s 18, and to pay to the employee compensation for the amount of €435.60 (€135.60 + €300 = €435.60).

CA-00060365-005

This complaint relates to: “I was not paid the minimum payment for the time I was required to be available for work under a zero-hour contract”.

I have made an award under CA-00060365-002. This is a duplicate complaint. Therefore I make no award in relation to this complaint.

CA-00060365-001

I decide this complaint under the Payment of Wages Act, 1991 is well-founded in part, and I direct the Respondent to pay the Complainant €120.

CA-00060365-002

I decide this complaint under the Organisation of Working Time Act, 1997 is well-founded. I require the Respondent to comply with s 18 of the Organisation of Working Time Act, 1997, and I require the Respondent to pay to the Complainant compensation of €435.60 (€135.60 + €300 = €435.60).

CA-00060365-003

I decide this complaint under the Terms of Employment (Information) Act, 1994 is not well-founded.

CA-00060365-004

I decide this complaint under the Terms of Employment (Information) Act, 1994 is not well-founded.

CA-00060365-005

This is a duplicate complaint. Therefore I make no award under this complaint.

CA-00060365-006

This is a duplicate complaint. Therefore I make no award under this complaint.

CA-00060365-007

I decide that this complaint under the Terms of Employment (Information) Act, 1994 is not well-founded.

Contract for services. Contract of service.