ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037668
Parties:
| Complainant | Respondent |
Parties | Matthew McGranaghan | MEPC Music Limited |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | DAY 1 – no representation DAY 2 – Martin McMahon Peter Behan DAY 3 – Martin McMahon Gerard McGranaghan (support person) | DAY 1 - Derek Ryan, BL Legal Representative Erika Ryan, Secretary to the company. DAY 2 – Derek Ryan, BL Legal Representative Paul Claffey (for company) Michael English (for company) Bernie Greally (FC of Company) DAY 3 – Derek Ryan, BL Legal Representative Jim Brady, Dillon Leach Solicitors Michael English (for company) Bernie Greally, (FC of company) Paul Claffey (for company)
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049090-001 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049090-002 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049090-003 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049090-004 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049090-005 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049090-006 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00049090-007 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00049090-008 | 04/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00049090-009 | 04/03/2022 |
Date of Adjudication Hearing: 30/01/2024
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Procedure:
In accordance with Section 27 of the Organisation of Working Time Act, 1997, Section 6 of the Payment of Wages Act 1991, Section 7 of the Terms of Employment (Information) Act, 1994, Section 8 of the Unfair Dismissals Act 1977 and Section 12 of the Minimum Notice & Terms of Employment Act 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present any evidence relevant to the complaints. Those who gave evidence took an oath or affirmation and I explained the relevance of same and also explained that the parties would be named in my decision.
Background:
The Complainant who was a musician in the band of the Respondent claims that he is an employee not a self-employed contractor and therefore is entitled to employment law entitlements under the claims he is taking. The respondent refutes this. There are 10 claims relevant to this case. In the first instance the case centres around the employment status or otherwise of the claimant, Mr McGranaghan who stated he was an employee and the Respondent, MEPC Music Limited states he was a contractor. Mr McGranaghan, the Complainant has taken the following claims: - CA-00049090-001 Complaintfor adjudication pursuant under Section 27 of the Organisation of Working Time Act, 1997 The Complainant stated he was not given compensation for working on a Sunday. CA-00049090-002 Complaintfor adjudication pursuant under Section 6 of the Payment of Wages Act, 1991 The Complainant stated he did not receive the appropriate payment in lieu of notice of termination of his employment. CA-00049090-003 Complaintfor adjudication pursuant under Section 27 of the Organisation of Working Time Act, 1997 The Complainant stated he did not receive his paid holiday/annual leave entitlement. CA-00049090-004 Complaintfor adjudication pursuant under Section 27 of the Organisation of Working Time Act, 1997 The Complainant stated he did not receive his Public Holiday entitlement. CA-00049090-005 Complaintfor adjudication pursuant under Section 7 of the Terms of Employment (Information) Act, 1994 The Complainant stated he did not receive a statement in writing in his terms of employment. CA-00049090-006 Complaintfor adjudication pursuant under Section 7 of the Terms of Employment (Information) Act, 1994 The Complainant stated he did not receive a statement of his core terms in writing. CA-00049090-007 Complaintfor adjudication pursuant under Section 8 of the Unfair Dismissals Act 1977 The Complainant stated he was unfairly dismissed and has at least 12 months service. CA-00049090-008 Complaintfor adjudication pursuant under Section 12 of the Minimum Notice & Terms of Employment Act 1973 The Complainant stated he did not receive statutory minimum period of notice on the terminationof his employment or payment in lieu thereof. CA-00049090-009 Complaintfor adjudication pursuant under Section 12 of the Minimum Notice & Terms of Employment Act 1973 The Complainant stated he did not receive all his rights during the period of notice. CA-00049090-010 Complaintfor adjudication pursuant under Section 12 of the Minimum Notice & Terms of Employment Act 1973 The Complainant stated he did not receive minimum notice of termination of his contract of employment from his employee. The payment involved in this case is €280 per event (gig) and the Complainant did an average 4 work engagements per week - €280 x 4 per week = €1,120 per week, €4,480 per month. The Respondent representative confirmed MEPC Music Ltd is the correct company name. |
Summary of Complainant’s Case:
The Complainant, Mr Mathew McGranaghan stated in 2011 he finished University and worked as a musician from then. He stated he heard in 2013 that Michael English was putting a band together to do live performances with Paul Claffey as his Manager. He stated it seemed to be a great job to get and he met with him in November 2013 about being a fiddle player in his band which would tour in Ireland and the UK. Mr McGranaghan stated he was asked to send his terms to Michael English and he sent him an email in 2013 of his terms and stated he was currently on €250 per night. He stated he may need travel expenses to be considered. He stated that he hoped accommodation would be included also. He included his CV with this. Mr McGranaghan stated he received a reply from Michael saying he would revert after talking to his manager. He stated he received a phone call and was offered the job to be the bands resident fiddle player. Mr McGranaghan stated he was instructed by Michael English on the music to play and received a uniform and was paid by cheque every Friday. Mr McGranaghan explained in 2014 late July he was told to start submitting invoices 8 months after starting work. He stated he did this from August 2014. He stated the average was 4 gigs per week mostly over the weekend. He stated the work started with sound checks and rehearsal which could be up to an hour. He stated there was a rehearsal rate which was half the full rate if rehearsal took longer than that and was on a different day. He stated they would get messages/emails to rehearse/learn a song, so you were doing that at home. He stated in May 2014 he did 16 days which is an example of how busy they were. He stated the company was a limited company. Mr McGranaghan stated in August 2014 there was a disagreement about accommodation being provided and Mr Claffey was trying to stop overnight accommodation and the band resisted this and overnights continued. He stated this was the first disagreement. He stated there was a company providing sound engineering service which wasn’t ideal as there was different people every night. The Complainant stated in March 2015 the band and himself got an email from Michael English and he said he needed to ask for bands help as some had asked about playing the north and promoting the show for the interests of the full band. He stated he doesn’t mind about the other band posts and asked them to promote their “our band” and “our shows” as it pays “our wages”. This email also referenced a UK tour. He also mentioned he was scheduling a band meeting. The Complainant stated he and another band member volunteered to be named drivers for UK tour. He did that for a few tours after that. He then declined to do it after that as he didn’t get anything for it and it was extra responsibility. The Complainant stated the singer also performed abroad without the band he was part of and it was discussed in October 2014 with the band about doing tours there and they did that from 2016. He stated he was still paid by the same Limited company during this time. Mr McGranaghan stated from August 2016 the band were at their peak and were very busy with very little time off. He gave an example of a very long day and work also included trips abroad. The Complainant stated in July 2016 himself and Michael met and Michael asked him was he happy in the band or it would have to be looked at and he said he was. He stated in July 2017 they recorded a live video in Killarney and were paid the standard rate for rehearsals as it was long days. He stated where video recordings are done a talent release form is required. The Complainant stated in December 2017 payment was changed from a weekly cheque to EFT into his bank account every Friday. He stated in August 2018 he was again asked was he happy after a disagreement with Michael English and he said he was happy to continue working. The Complainant stated on a Saturday when his partners child was rushed to hospital and he went to work on the Saturday and Sunday night as they were important events and he asked to be off on the Monday as his partner needed help, other that this he was rarely off. He stated a substitute fiddler player stood in and was paid by the company when he was off. The Complainant stated he was not paid for that Monday night. The Complainant stated towards the end of the year he became aware of bogus self-employment and he then felt this could apply to him. He stated in February 2019 he raised the matter about him becoming an employee with Paul Claffey. The Complainant stated that Mr Claffey sent him and others in February 2019 an email to offer him to talk to Vincent who was a tax advisor. He forwarded Vincent’s email to them explaining that Vincent had explored the options of band members being; 1. Self-employed + VAT implications 2. Band members to incorporate Ltd company. 3. The query about being treated as employees and after careful consideration this was not a requirement for the company to do this and therefore isn’t an option for the company. The complainant stated he emailed the Minister and others about the bogus employment issue and that it would put him at risk to lose his job. The Complainant stated on 22 May 2019 Michael English met him and during that meeting he said Michael English told him this isn’t the band for you I have thought that for the last year and I am entitled to say it to you. The Complainant stated Michael said if he wanted a member out of the band, he would just say it and that he’d done that before and said if he wanted someone to walk, he would tell them to walk as he is perfectly entitled to do that. The Complainant stated he said to Michael English did Paul (the manager) want him gone and Michael said 100% he does but he’d give him another chance. The Complainant stated Michael English said he came here to say the show is over. He stated Michael English said I could easily ring up a fiddle player and I’d get Ten as I have a good name and I pay the going rate. The Complainant stated Michael English said the friendship is gone and its now strictly business from your side and if you are not progressing or part of the team you can’t be part of it. Mr McGranaghan, the Complainant stated on 29 November 2019 he attended a family wedding and he advised in an email he would be seeking the night off after discussing it with him. He stated a substitute was sourced by the company and he assisted them and they were paid by the company. The Complainant stated in February 2020 he was scheduled to work over a weekend. On the week leading up to it they confirmed he’d be on the Late Late show and he was offered overtime rate and he wasn’t happy with the rate and they got a substitute instead. Mr McGranaghan stated in March 2020 they were on tour abroad and the tour was cut short due to Covid and music industry was shut down for most of 2020 and 2021. The Complainant stated in May 2020 he asked the Department of Social Protection to investigate and decide if he was an employee. He stated in December 2020 the scope investigation determined he was an employee. He stated he submitted his claims to the WRC also. Mr McGranaghan, the Complainant stated in the summer of 2021 Michael English asked would he be available to return after Covid restrictions. He stated he would. The Complainant stated the company then organised a band meeting and he suggested meeting would be online via Zoom. He stated therefore a Zoom meeting was held on 26 August 2021 with Michael English and Paul Claffey, Respondents and the members of the band. The Complainant stated he had transcripts which was from a meeting when Mr English said the band members becoming employees is not an option for me as I’ve many strings to my bow. He stated he was going to continue hiring musicians as he had always done and if it doesn’t suit to let him know now. Mr McGranaghan, stated Michael English said Mathew you had a concern about that and he said to him it’s an ongoing concern so we’ll leave it at that. He stated Mr English said I’m not happy to leave it at that. I am continuing as I always did. The Complainant stated Paul Claffey said we’re making it clear it won’t be happening in the Michael English band. Mr McGranaghan stated after that there was no communication until 22 September 2021 when he got an email from Paul Claffey saying we regret your decision not to continue your services and he said he knew that the only reason was that they wouldn’t make him an employee. Under cross examination the Complainant was asked did he see himself as a manager and he stated he’d previously been musical director and stated he wasn’t in this band. The representative asked Mr McGranaghan to explain what he understood by bogus self-employment. He stated he was bogus self-employed and saw it in the media at end of 2018. He explained he understood if you are under the control of other people, you were an employee as set out in the code he read. He stated he read a number of articles from around the world including those related to musicians similar to his own situation. The Complainant stated he raised the issue in February 2019 via a conversation on 5-8 February 2018. He stated he received an email which was sent to him and the other Republic of Ireland band members. He stated the company in that email referred to advice they received from a tax advisor and they copied this to him. He stated the advice was coming from a 3rd party via Paul Claffey. The advice was for the company. The Complainant stated he got an email from Mr Claffey reference advice from tax advisor and company position in that regard. He stated he accepts that the advisor said there was no obligation on the company to make him an employee. The Complainant stated in May 2020 he contacted the scope section of the Department of Social Protection and an investigation occurred reference his status of employee or contractor. The investigation finding confirmed he was an employee for that time and he read from the scope decision confirming it said “he is employed under a contract of service and is an employee”. The Complainant confirmed he was a different tax class “S” for PRSI before that which was for self-employed people and he was of that class from 2011 until now. He stated he still has this class and revenue amended his file after the scope decision in March 2021. The Complainant stated he did not follow up to two scheduled appeal hearings by the Company against the Social Welfare case. Mr Derek Ryan, BL Legal representative for the Respondent stated he didn’t take up his opportunity to prosecute his case by not attending the appeal hearing. Mr Derek Ryan BL Legal representative stated that Revenue did not update his tax status from self-employed. Mr Derek Ryan BL Legal representative stated revenue amended his file and that’s how his file was updated as he updated them of the scope decision when he notified him of the outcome of the scope. The Complainant stated once he triggered the scope investigation, he felt there would be negative respondent response. He stated he raised the scope issue in May 2020. He spoke reference the meeting in August 2021. He stated this band meeting was to discuss returning to work after Covid. He stated he was treated the same as colleagues i.e. other band members and all were told anyone wouldn’t be coming on board as employees. The Complainant stated he felt his employment status was under appeal so didn’t discuss with the Respondent at the time. The Complainant stated he didn’t have a contract or any other employee documents and accepted ordinarily they would be in place. It was reported there are no outstanding WRC issues following their WRC inspection. He accepted they were appropriate body to do this audit. The Respondent representative stated if Mr McGranaghan was not aggrieved in 2019 why didn’t he make a claim, then for fear of losing his job. The Complainant stated he was dismissed for raising this issue. The Complainant stated he accepts the appeal over-turned the decision he was an employee in social welfare scope. The Company representative stated the Complainant has no documentary evidence to say he was an employee. The Complainant stated it’s the actual reality of the case. The Company representative stated the appeal was not supporting his case saying he is an employee. The representative stated it was a very thorough social welfare appeal and confirmed he wasn’t an employee. The Complainant stated he will be appealing it and there’s precedent of this happening before where WRC found independent of social welfare person was an employee. The appeal decision dated 20 January 2023 is being appealed by the Complainant according to the Complainant’s representative Mr McMahon and they stated they will go all the way to the Minister if necessary. They stated that the Complainant only worked for MEPC Music Ltd never for Paul Claffey Tour Ltd and was never paid by them and the Complainant gave evidence to confirm this. It was confirmed the appeal was emailed on 22 February 2203 to the Representative for the Respondent and to Social Welfare Appeal office and copied to WRC also. Under cross examination, the Complainant, Mr McGranaghan stated in May 2020 he made contact with Social Welfare to request an investigation into his employment status reference his insurability of his employment. The Complainant stated he was an employee a long time ago for a different employer. The Complainant stated when he got the job with Mr English, MEPC Music Ltd he had previously worked for a UK company for 6-7 months and others previously. He stated he was self-employed individually with them. He stated they were similar in terms of role but different legal terms in the UK. He stated he deemed himself a worker in those companies and had work on an ongoing basis. He stated he was paid for each shift he worked with them. The Complainant stated he was paid the majority of the time in advance of the work being completed with MEPC Music Ltd so he said he was obligated to do the work. The Complainant stated there was generally an 8-week circuit and cycle of work they would do so they had repeat work and performances with MEPC Music Ltd. Mr McGranaghan stated he received dates 3-6 months in advance from the Respondent for the music performances and out of 1,200-1,300 dates he was only unavailable for 2 dates and he requested these off and gave significant notice of them. The Complainant stated that he was paid to do work and was providing personal service in return for same. Regarding the Complainants amended tax certificate which was amended around December 2020 after he spoke to the scope section, they advised he needed to contact revenue to advise them of the decision and in March 2021 they amended his tax certificate. He stated he merely notified revenue reference the decision and they updated his cert then. The Complainant stated a third party contacted revenue and shouldn’t have been contacting revenue about his details as they shouldn’t have his details. The Complainant stated it was revenue and not himself that updated his tax certificate to show him as an employee after he sent them decision from scope section. He stated he didn’t request anything. He stated he told them that the decision was also under appeal and he emailed them that. Regarding the decision of January 2023, the Complainant stated this is made on incorrect information. The Complainant stated he didn’t attend appeal hearings as social welfare wouldn’t supply him with test cases. He stated that the case was between the Company and Minister for Social Protection so it wasn’t his case. Mr McGranaghan, the Complainant stated he accepted there was publicity on social media. The Complainant was asked was he aware reference time limits required reference WRC and he stated yes, he was and in September 2022 he was unfairly dismissed by email from Paul Claffey and he had 6 months to make a claim and that occurred by 4 March when he submitted it. The Complainant stated he accepts the music industry was affected by Covid. The Complainant stated his insurability covers tax and employment. The Respondent stated they sent an email reference possible performances in September to say he wasn’t available. He stated it was some recordings live and online. He stated that was the only date he wasn’t available he said. The Complainant stated he applied for the Music & Business Entertainment Scheme grant based on previous earnings and he got between €1,000 – €5,000 of state funding. He stated the criteria was you had to be performer in music industry who was out of work. It was state initiative. He stated he received a PUP payment on basis he was out of work as self-employed person but scope decision reference his insurability of employment didn’t happen by then so that was category he was then. He stated he didn’t get any correspondence from the company reference PUP. The Complainant stated in reference to email of August 2021 from Mr English to the complainant reference his availability for event mentioned above but he said he was unavailable for that event. The Company representative stated that while industry was closed down was, he available; the Complainant said only because industry was closed down was he not available. The Company representative stated he put himself up on social media that he was in self-employment. The Complainant stated that scope decision wasn’t received by then so that’s the only status he had at the time. Mr McGranaghan, Complainant stated when he raised his employment rights issue with the company, he was told at that 26 August meeting which others were present that you only could be self-employed if you wanted to be part of the band. Mr McGranaghan stated he got no offer of work from that meeting date but other members of the band did. Mr Claffey, Respondent sent email on 22 September 2021 to confirm his services would no longer be required and he takes this email as the notice of his dismissal. The Respondent stated on 6 April 2022 they got WRC inspection notification and that occurred in April 2022 and the company say there were 2 non-compliance issues but they rectified them and there were no other outstanding matters. The Complainant stated the WRC advised him on what claims he should take that’s why he took those claims. He explained also to WRC inspector that he’s only an employee status since scope decision so they’re won’t be any evidence of same as a result in company documents. |
Summary of Respondent’s Case:
The Respondent stated that they would not be calling Michael English to give evidence on behalf of the Company as he had another event to attend. The Complainant representative stated they have no need to cross examine him once they have representative from the company, they can cross examine reference evidence. The Respondent stated that they have two representatives that will be giving evidence on behalf of the company. The Complainant representative stated that was acceptable to them. The witnesses on behalf of the Respondent company both took oaths prior to giving evidence. Ms Bernie Greally gave evidence on behalf of the company. She stated she is the Financial Controller for Paul Claffey for 32 years and for the company since it started in 2014. Ms Greally stated she would pay invoices she received on Thursday/Friday for the gigs they were doing that weekend. She stated she paid them the Friday before the gig usually so they would have their money for the weekend. Ms Greally stated the musicians were not employees. She stated employees were paid on 25th of the month via payroll package and she’d never had revenue issues and hasn’t been audited by revenue. She stated they had a WRC inspection in April 2022 and she went through it with him. She stated the outcome of inspection was all was in order but she had to submit two pieces of information and all was then OK according to the WRC she said. Ms Greally stated she also drafts employee contracts. She stated she didn’t consider Mr McGranaghan, Complainant as an employee. She stated the WRC inspection didn’t mention Mr McGranaghan to her. In cross examination, Ms. Greally confirmed that she would pay the complainant on occasion in relation to the work he was supposed to do. She stated sometimes she would pay for gigs in advance. The representative for the Complainant stated the band took holidays when they didn’t perform for period of times but Ms Greally said she couldn’t confirm same. Ms Greally confirmed she worked for Paul Claffey Tours also. She also confirmed in email that payments were made from the MEPC Music Ltd Bank Account but the money is reimbursed by Paul Claffey of Joe Walsh Tours Ltd c/o Paul Claffey Tours Ltd in the MEPC Bank Account. Ms Greally gave example documents for the procedure to follow. She stated Mathew McGranaghan invoiced MEPC Music Ltd on 11 June 2018 for Spain Trip 2018 and then MEPC Music Ltd invoiced Joe Walsh Tours Ltd c/o Paul Claffey Tours Ltd on 25 July 2018 for the fees. She stated the same goes for the Portugal Trip in October 2017. MEPC Music Ltd were asked to provide evidence of payment to Mathew McGranaghan from Paul Claffey Tours Ltd. Mr McGranaghan followed up with copy of two Invoices from MEPC Music Ltd to ‘Joe Walsh Pilgrim Tours Ltd’ and two receipts/invoices from Mathew McGranaghan to MEPC Music Ltd. He stated this documentation does not show that Mathew McGranaghan was paid by Paul Claffey Tours Ltd. Mr McGranaghan provided evidence of payment for the dates in question. Mr Claffey gave evidence saying he was a business partner with Mr English in the company. Mr Claffey stated he had years’ experience in the music industry. Mr Claffey stated it’s a small industry and he got list of names and also people contacted them reference putting this Michael English band together. He stated there was two band members who was an employee and he did music and lighting and there was a second person who did lighting and merchandise. He stated there were five employees in the company at this time – three others than those mentioned including Paul, Michael and Bernie. Mr Claffey stated the band had five members plus Michael and sometimes it extended depending on events. He stated they did a variety of gigs. One was an employee and the other band members supported the band were not employees. Mr Claffey stated they had a WRC inspection. Mr Claffey stated he agreed terms with members of the band and that was fee per gig. He stated they would use different musicians to play band instruments on occasion but not often. Mr Claffey stated that in 2014 is when Mr McGranaghan, Complainant became involved with MEPC Music Ltd company. He stated he agreed his fees and said he would be responsible for his own taxes and had to send invoices and get paid then. Mr Claffey stated Mr McGranaghan only got paid when he performed. Mr Claffey stated he didn’t get holiday pay nor did he apply for them. He stated he was a regular contributor to the band. He stated he never took the Complainant to be an employee. Mr Claffey stated he became aware of when Mr McGranaghan requested to be an employee in Killarney and he said it wouldn’t work and he didn’t know of any band that had employees. Mr Claffey stated he didn’t give the Complainant any employee related documents and didn’t consider him an employee. In reference to the appeal from Social Welfare decision, Mr Claffey stated that the Complainant said at that hearing he wasn’t an employee and still believes that to be the case. Under cross examination the Complainant representative stated that it was with Mr English his terms were negotiated but the witness Mr Claffey stated he agreed the fee and that he would look after his own tax with the company. The Complainant representative stated they paid first then invoice them. Mr Claffey stated they did do that due to good will and if they didn’t do the gig they wouldn’t be paid. The witness stated he’s involved in MEPC Ltd as well as another company Paul Claffey Tours. Mr Claffey stated five key musical instruments were required in the band each night – the musicians varied 5-6 times over the 6 years. Mr Claffey stated the Complainant did over 200 gigs per year for 6 years and it was acknowledged he was very rarely missing and he would contact the company if he wasn’t available. He stated the Complainant refused one event he remembered the Late Late Show as he wasn’t happy with the fee for that event. Mr Claffey stated there was no issue with him missing a gig. Mr Claffey stated the one employee they had in the band was a musician and had rodeo and driving and other responsibilities also. It stated his accountant said he was an employee due to the nature of his combined duties. Mr Claffey stated he wasn’t sure if the Mathew McGranaghan drove the van. Mr Claffey stated the Complainant did a large variety of tasks for the company and that’s what made him an employee including fixed lights etc. Mr Claffey stated that when they did a gig in England, Mathew would drive the van for full group to travel together on that one occasion for approximately 6 days on UK trip this was the only time he had extra duties. Mr Claffey stated he got the best professional advice and they said they took that advice reference if people should be employee or contractor. The witness confirmed they paid Mc McGranaghan to play the fiddle personally. He stated he was told what to do in line with their music programme. He stated Mr McGranaghan wore a band uniform when on stage. He stated that Mr McGranaghan was only missing twice in the entire time and the company paid his replacement on those two occasions. Mr Claffey stated the Scope Section made a PRSI decision on what Mr McGranaghan should be paying. It was then appealed. Mr Claffey stated the Complainant was paid €50,000 approximate for approximately 220 gigs which was a very good wage for that number of gigs. The Representative for the Complainant stated that they were given music and songs to learn and know in advance of the live performance which they were not paid for but there was very little new songs as they were accomplished musicians. He stated they had rehearsals also that they would be paid for. The Complainant representative stated they had to learn and know songs in advance of the performance. The company representative stated the fee they got per gig covered this cost. Mr Paul Claffey stated there was a tour they did every June and some in September and he stated he negotiated fees for that tour as it involved the musicians backed more than the Michael English band as there was other musicians to back. The Complainant representative stated that even when you are paid in that way that doesn’t dictate employment status and that he could also do other work elsewhere as an employee. The Complainant representative stated the vast majority of Mathew’s work was with MEPC. Mr Claffey stated he was free to work elsewhere and just by wearing a uniform didn’t mean they were an employee and ad hoc musicians who joined the band wore the same uniform also. A written submission from the Respondent was presented in which they stated this matter regards the number of allegations by Mr McGranaghan (Applicant) that centred around his mistaken belief that between 1st January 2014 and 22 September 2022 he was an employee of the Respondent Company. The Respondent raised a preliminary objection to the matter proceeding to full hearing on the grounds that the Applicant is statute barred from making any allegations regarding his employment, which is denied, with the Respondent Company. They stated he was informed in March 2020 that there was no available work as a result of the State’s health authorities’ decision to restrict movement and effect a lock down on society. They stated this lockdown resulted in the cancellation of many different shows and musical / theatrical events. MEPC Music Limited was no different to many employers and was forced to cancel many shows and appointments. They stated the applicant was treated as and paid as a self-employed person on the receipt of invoices for work, in the form of music gigs, which the Applicant performed with the Respondent Company band. They stated the Applicant within was, like many others, left without income and had to make application to the State for Pandemic Unemployment Payments. On the 8 May 2020 the Applicant made allegations to the Department of Social Protection (SCOPE) Section regarding his employment status. His allegation was that he believed that he “fit the criteria for being an employee.” Thereafter he misconstrued facts and sought assistance in determining his employment status. They stated the Applicant subsequently filed and signed an INS 1 form regarding his insurability with Department of Social Affairs (Scope Section) on the 2 July 2020. They stated this query was investigated, and a determination issued on the 19 November 2020. They stated it is submitted that the Applicant within at all times was aware of the question of his employment status and at all times was operating with the benefit of his full knowledge of the applicable law. They stated it is submitted that the Applicant was obliged to make his complaint regarding his alleged unfair dismissal in March 2020 and certainly in July 2020 when he raised the issue regarding his employment by completing the INS 1 form. They stated the Applicant has not demonstrated any reason for the delay in making the allegations, which are denied, within the statutory six months and he has not demonstrated or explained any reason or any good reason at all as to why the statutory six months should be extended to 12 months. They stated it is also submitted that in any event if he were to meet the threshold required, the allegations are unfortunately for him, still outside of the extended statutory time limit required to make his complaints, which are denied. They referred to The Workplace Relations Act 2015 (the “WRA 2015”) which provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. There are equivalent time limits under the Unfair Dismissals Act, the Employment Equality Act (the “EEA”) and the ESA. A longer period applies regarding Redundancy Payment Act complaints. The date when a complaint or dispute is referred is the date when it is received by the WRC. If a complaint is not referred within the time limit, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the complainant has demonstrated ‘reasonable cause’ for the delay. An Adjudication Officer has no power to extend the time limit beyond 12 months after the last alleged contravention (24 months in a Redundancy Payments complaint). It is submitted that the Statutory Time Limit expired in December 2020 and if extended to the permitted 12 months to July 2021, is still outside of the permitted statutory time limit. They stated by way of background information, the Applicants Scope Section determination, which was found in his favour was appealed by the Respondent Company. They stated this Appeal was submitted to the Appeals Officer and a hearing date for the Appeal was initially set for the 24th of May 2022. They stated when the matter opened before the Appeals Officer, informed the Respondent Company that the Applicant had refused to attend as he was not in possession of “test cases” that the Appeals Officer may intend to rely upon in the Appeal. The Respondent Company, in the interest of fairness acceded to the suggestion by the Appeals Officer for an adjournment to enable the Applicant deal with the issues he raised in his correspondence with the Appeals Officer. They stated the grounds of the Respondent Companies Appeal to the Scope decision are set out below. 1. The deciding officer did not have regard for the reality of the situation regarding the music industry as it is in Ireland. This situation has become more precarious with the current health restrictions. 2. The applicant made his application to SCOPE in the knowledge that he approached me seeking work on the basis that he would invoice me for the nights that we worked and only for the nights that we worked. I also state that the applicant has had the opportunity and has availed of the opportunity to perform with other musicians and bands. The fact that he chose to perform his services primarily with me is not sufficient to establish that he is an employee. 3. The applicant could, and did chose not to perform on occasion. 4. There is no evidence that MEPC Limited did or would have found the applicant unreliable or would have had him replaced if he did ask for too many nights off. It was his choice. 5. The control test referred to does not make allowance for the fact that all musicians playing together must take instruction from a band leader to play the music at the required tempo or rhythm. 6. It is long established custom and practice that musicians working with bands travel with the band and do not have to supply their own transport to distant gigs. 7. The applicant did by his own information provide service to different people and bands. 8. There is no evidence that the applicant had to turn down any work from other people requiring his services. 9. It is a mistaken calculation that the applicant did 220 gigs / days per year with MEPC Limited. It is submitted that the actual figure is significantly lower than that and evidence will be adduced at the hearing of the appeal. 10. It is also long-established custom and practice that musicians have their accommodation covered by the band, in this case MEPC Limited. This practice is not indicative of a master and servant situation. 11. There is no indication of whether the applicant did make the relevant returns to revenue as a self-employed person. 12. It is denied that MEPC Limited was ever in a position to dismiss the applicant as the applicant was always in control of what work he provided and when he provided it. 13. The applicant could send a substitute and MEPC would pay that substitute, it was often the case that MEPC Limited would look for a replacement for musicians at short notice due to many different reasons outside of the control of MEPC Limited. 14. It is submitted that the decision is erroneous and is a mistake in law and on the facts and did not take account of those facts and additional information that were referred to in the information supplied by MEPC Limited. 15. The exclusivity test cannot be satisfied if the applicant provides services to other bands. This is a mistaken belief. 16. There was no obligation for MEPC Limited to provide services to the applicant and similarly there was no obligation on the applicant to provide services on MEPC Limited behalf. There is no mutuality of obligation and integration. 17. Holidays are a matter for MEPC Limited and its staff and did not and do not apply to the applicant as he was free to decline the offer to provide services. The lack of bookings for a period of time is not defined as holidays and MEPC Limited would have continued its business despite not having bookings. 18. The applicant could take his holidays anytime and has not demonstrated any examples of when he was unable to take his holidays. In any event that is a matter for the applicant and MEPC Limited denies that it was responsible for the applicant’s alleged forbearance of his holidays. The Respondent summarised the Chronology as follows: 1 January 2014. The Applicant starts providing his services to the Respondent Company. March 2020. The music industry, and the rest of society are effectively closed by the imposition of public health restrictions on movement and public meetings etc. 8 May 2020. The Applicant makes an initial complaint and raises issues with the Scope Section of the Department of Social Protection. (Email to Aoife Keenan) 2 July 2020. The Applicant submits his INS 1 form to the Scope Section for determination. 4 August 2020. The Respondent Company become aware of the matter and file a response INS 1 form to Scope Section. 19 November 2020. The Applicant receives a determination from Scope Section regarding his insurability which is in his favour. 3 August 2021 – 9:33am. Michael English sends an email to the Applicant informing him of the possibility of a booking on 4 September, 2021. 3 August 2021 – 5:56pm Applicant responded to Michael English declining due to a “prior commitment of work through the Live Performance Support Scheme.” 22 September 2022 – 3:38pm. Paul Claffey of Respondent Company e-mail to Applicant within which he states that he could not make Applicant an employee. 28 September 2021 – 2:21pm. Applicant e-mail to Paul Claffey of Respondent Company. Within this e-mail reference is made to Revenue “had amended my record which recognises me as an employee with MEPC Ltd.” 6 April 2022. The Respondent Company receives notification of inspection of records held at its office from the Workplace Relations Commission by an authorised officer of the WRC. See Inspection Case File No: INS-KRPT5Q 27 April 2022. The inspection at the Respondent Company office is carried out. 24 May 2022. Appeal hearing is opened in the Department of Social Protection Office in D’Olier Street, Dublin. The Applicant does not attend. This is hearing is adjourned. 24 May 2022. Contravention Notice from WRC Inspection INS-KRPT5Q received by the Respondent Company. 9 June 2022. Respondent Company submits documentary evidence to WRC in compliance with Contravention Notice requirements from WRC Inspection INS-KRPT5Q. 18 October 2022. WRC Adjudication Hearing is listed for hearing and Respondent Company sought adjournment which is opposed. Adjournment is permitted in circumstances where the Respondent Company witnesses were not available to the Adjudicator or the Applicant. 1 November 2022. Respondent Companies Scope Appeal Hearing is held in Mullingar Park Hotel. Applicant does not attend so the appeal is heard by the Appeals Officer. Submissions are made and questions answered. A final decision is awaited from this Appeal. 17 November 2022. Respondent Company receive notice from WRC regarding WRC Inspection INS-KRPT5Q informing the Respondent Company that the inspection exercise was completed and thanking it for its assistance. No adverse findings or matters arise from the inspection. The Respondent stated the Applicant was not nor was he ever an employee of the Respondent Company nor has he ever had an employee ID number, from the Respondent company, for taxation purposes. They stated from the start of the business agreement between the parties the Applicant submitted an invoice at the end of each week to the company office wherein he indicated the number of gigs performed as a musician. They stated the Applicant was responsible for and made tax returns with the Revenue and the Respondent Company was not involved with same. They stated there was and is no contract of service between the parties, this is evidenced by the fact that there was a thorough WRC inspection carried out in the aftermath of the Applicants complaint to the WRC. They stated as there was no contract of service between the parties, the Applicant was not deemed to be an employee and therefore was not required by statute to receive any of the statutory rights more normally associated with an employee. They stated he was not and is still not entitled to the normal rights that an employee is entitled to. They stated the Applicant was not ever in a position where he was or could have been subject to a discipline hearing or suffer any form of discipline. They stated the Applicant was and did make himself available for defined gigs as and when the Respondent company was in a position to inform him of these gigs. They stated the Applicant did and does provide his services to other entities. They stated he states this in his e-mail dated 3 August 2021 wherein he states that he had “prior commitment of work through the Live Performance Support Scheme.” They stated the Applicant made and submitted or had submitted on his behalf tax returns and paid PRSI Class “S” for the years 2014 up to 2018. This have been evidenced and confirmed by Scope Section of the Department of Social Protection. They stated the Applicant, or someone on his behalf, appears to have updated his own information with the Revenue Commissioners in an attempt to give the overall impression that he was an employee. They stated this is an identifiable trend in society over recent years and more especially in the last decade. They stated this economy encompasses diverse jobs or roles such as food delivery services, transport links such as Uber and even the holiday rental sector via the Air BnB. They stated these modern matters have been greatly assisted by the use of mobile phone apps. They stated however, it is submitted that there has also been an older form of gig economy, perhaps the original form of the gig economy, and this is the music industry and theatre industry in Ireland. They stated similarly, lawyers perform “gigs” for various solicitors and State Bodies and at no point, no matter how many briefs received, does the lawyer attain the required circumstance’s to be considered an employee of the bodies briefing him or her. They referred to a decision of the Court of Appeal, wherein the law regarding the mutuality of obligation and integration tests was discussed to ascertain whether a delivery driver was an employee or not was decided. Karshan (Midlands) Limited t/a as Domino’s Pizza v. Revenue Commissioners [2022] IECA 124, (“The Domino’s Case”) the Court of Appeal earlier this year found in favour of Domino’s, the Appellant. Ms. Justice Costello, for the majority, ruled that the Revenue Appeals Commissioner had erred in determining that there was no requirement for ongoing obligations to provide and carry out work, in order for the required ‘mutuality of obligation’ of an employment contract to be fulfilled. The Respondent stated that in that case the judge also carried out a forensic review of the wording of the written agreement entered into by the parties. She noted that there was no requirement on the part of a driver to make himself available for work. It is submitted that whilst there is no written contract between the Claimant and the Appellant in this matter, it was and is the case that there was no requirement for the musician, the applicant, to make himself available for work. He was the decision maker whether or not he wished to perform the task of fiddle playing. Nor was there any obligation on the Appellant to provide work for the Claimant. They referred the Dominos Case where it was found that contrary to the Appeal Commissioner’s (previously undisturbed) finding, the driver was not “obliged” in any way to seek to find a substitute if he was unavailable for a rostered shift – he had only to “notify” Domino’s that he was no longer available. In fact, the contract lacked any kind of sanction if the driver failed to attend for any shift. Having the contractual right to turn down work is generally incompatible with a legal employment relationship and is more indicative of a self-employed arrangement. They stated it is submitted that a similar relationship existed between the parties in the matter under scrutiny within. They stated the Applicant could and did turn down work, he did not, nor would he have to, face any disciplinary sanction for that choice. They stated it is the case that the Claimant did turn down work and the Appellant simply went and hired a different fiddle player for the musical appointment (The Late Late Show). In the Domino’s Case they referred to the Court was critical of the previous findings of the Appeal Commissioner that the requirement for mutuality of obligation was satisfied at the time when the specific shifts were agreed between the parties. That is, that the time-limited obligation to work the specific shifts on one particular rota, absent any further continuing obligation, satisfied the law’s requirement that an employment relationship requires an enforceable obligation to provide work and to perform work. They stated it is the case of the Respondent Company that this question of mutuality of obligation is key to this adjudication and whether there is ‘mutuality of obligation’ in the relationship between the parties because this is a sine qua non or absolutely necessary of the employment relationship. As Edwards J. put it in Minister for Agriculture v. Barry [2009] 1 I.R. 215 at page 230 “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 is must be a contract for services, or something else, but not a contract of service….”. Edwards J. went on to agree with the characterisation of the requirement as “one sine qua non which can firmly be identified as an essential of the existence of a contract of service” and “that irreducible minimum of mutual obligation necessary to create a contract of service.” They stated it is submitted that this matter is one wherein the comments of Edwards J have direct application. They stated the above has been established in the Domino’s case as the appropriate test and was approved and applied in previous High Court decisions, Mansoor v. Minister for Justice [2010] IEHC 389, Brightwater Selection (Ireland) Limited v. Minister for Social & Family Affairs [2011] IEHC & McKayed v. Forbidden City Limited [2016] IEHC 722. These cases were also addressed in the Judgement of Costello J. in the Domino’s case. Further Houghton J, in the Dominos Case referred to the UK case of Weightwatchers (UK) Limited & Revenue & Customs Commissioners [2011] UKIT 433 (TCC). This decision held that in cases where there was an overarching contract for discontinuous work, with discrete contracts for periods of work, it was necessary to show that “the requisite irreducible minimum or work-related obligation subsists throughout each relevant discrete contract, not merely during the potential shorter period when the contracted work was being done.” They submitted that the Respondent Company did not have any regard or control with the period of time periods that the Applicant was not providing his services by playing his musical instrument, in fact he was free to use the same instruments to play for and with other musical bands or in fact do anything else he wished to do, whether musical related or not. They stated therefore, he fails to fulfil the test of mutuality of obligation and therefore cannot be considered an employee for the purposes of sustaining the allegations within. The Respondent Company stated they contend that the Applicant was subject to a long-established custom and practice of wherein the Respondent Company would indicate the dates the Applicant was required to perform, and the Applicant could, and did, accept that custom and practice. The Respondent Company stated they contend that each date forms an individual contract, with mutual obligations only comes into place when the Applicant indicates his availability to play and the Respondent Company places him on the list of musicians available to the band on that date, and he turns up to perform that contract. They stated it is a take it or leave it type of contract. They stated the key terms of this type of contract have attractions for musicians who provide their own instruments and provide their own car, as well as maintenance of, tax, fuel and insurance to drive to the various gigs and has flexibility for people who may decide to decline to take on a drive to the far end of the country for the fixed and agreed sum between the parties for the gig. They stated it is submitted that this freedom to accept or decline work has to be considered in great detail by the Adjudication Officer and although there is no written contract between the parties, it is worth noting the Dominos decision noted that a driver can sign up for work but has absolutely no obligation to make himself available for work. They stated, similarly in this case, a musician could “sign up” by indicating his availability to the Respondent Company and then at a later date decide not to be available and indicate this to the Respondent Company. They stated this did happen, and it is submitted the Adjudication Officer should place sufficient weight to this important fact when making a decision regarding this matter. They stated there was no obligation on the Applicant to inform the Respondent Company of any unavailability, foreseen or unforeseen, nor was there any consequences of absenteeism and/or failure to notify of unavailability. They stated it was claimed by the Applicant that if he didn’t turn up, he would not be asked to provide his services again. They stated this is indicative of a relationship that is not an employee versus employer. They stated there is no proof or indication that he could be dismissed or was in fact as alleged by the Applicant. They stated it is denied that the Respondent Company is responsible for the determination of the working hours of the Applicant. They stated he is offered a list of dates where his services are required in advance, and he simply indicates his availability or unavailability. They stated in the event of his or any other musician’s indication of unavailability the Respondent Company simply contacts another musician that either the Applicant or the Respondent Company, may have referred to or some other known musician. They stated, it is submitted, in analogous to the Domino’s Case. They stated it is submitted that the exclusivity test has not been satisfied and further submits that the Adjudicating officer must give sufficient weight or consideration to the fact that the Applicant did play with other bands during the relevant period of his alleged employment, which employment is denied. They stated during the time of alleged employment, the Applicant did perform work for others and also did studio recordings of his own. They stated the Applicant was contracted to perform approximately two hours work per gig. It is submitted that the Applicant travelled on the overseas tours with the band to work for Paul Claffey Tours. They stated the Applicant was paid by Paul Claffey Tours Limited, the Applicant worked for different artists, and this is further evidence that there was no exclusivity with MEPC Limited or indeed Paul Claffey Tours Limited. They stated it must also be accepted that it is a well-established principle that the expression of intention in contract documentation, and how the parties themselves describe their relationship, will not be accepted as decisive or conclusive in law. They referred to the Supreme Court where they applied this principle to an employment context in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34. This principle, it is submitted, must also be applied in circumstances where there is no written contract. Nevertheless, the law must accord appropriate deference to what the parties have actually agreed. As Geoghegan J. stated in Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs [2004] 4 IR 150, at p.161 in a passage quoted in part in the Commissioner’s Determination: “…There is nothing unlawful or necessarily ineffective about a company deciding to engage people on an independent contractor basis rather than on a ‘servant’ basis but as this court pointed out in Henry Denny …and other cases, in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature. Nevertheless, the wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract. In this case, apart from matters of minor detail, the written contract seems to have been the contract that was actually worked.” They stated it is submitted that the Applicant within is not an employee of the Respondent Company, he was not an employee on the date of his alleged dismissal, he has engaged in a course of action including having information updated on to his Revenue Records to give the impression that he was an employee of the Respondent Company. They stated the Respondent Company is the only entity entitled to input details with Revenue and other statutory bodies as required by law as to who their contracted employees are. They stated it can never be the case wherein a person can be permitted to make a declaration that they are an employee when there is no contract between the parties. They stated they were not aware if the Complainant was on Social Welfare and on what basis was, he paid this payment, or what level of Pandemic Unemployment Payment did he receive, nor are we aware of any subsequent grants received which were made available for the music and art industry in Ireland. They stated the Complainant simply makes the case that he was an employee when the matter suited him. Finally, they stated it is submitted that the Applicant has on more than one occasion identified himself on social media and other media as a self-employed musician and has since the start of the Pandemic been a very good and articulate advocate for the self-employed musicians in the Irish music industry. They stated in the circumstances, it is submitted that the decision of the Adjudicator can only be to dismiss the Applicants claim as he does not satisfy or demonstrate any evidence of the contractual arrangement necessary to sustain his claim that he was an employee of the Respondent Company and therefore enjoy the statutory protection and rights afforded to an employee. |
Findings and Conclusions:
There are a number of areas I will examine based on the oral evidence and written submissions presented to me from both parties and the relevant legislation and case law relevant to this case under the following headings and key questions: - 1. Was the Complainant a contractor or an employee 2. Was the claim made within the required timeline of the legislation 3. Was there a breach of the legislation based on the alleged claims and if so, what is the appropriate redress for same There is no interdependency between a person’s tax or social welfare status and employment status in the eyes of the legislation. The determination of an individual’s employment status in the context of ascertaining whether or not that individual has standing to pursue claims under employment legislation and this is the first matter I will consider. CONTRACTOR VERSUS EMPLOYEE The distinction between an employee and an independent contractor is crucial in this case, because most employment law protections apply to individuals employed under contracts of service ie employees and not to independent contractors therefore, I am considering same. The question of whether a person is an employee or is self-employed for the purposes of Irish employment rights legislation depends on the definition contained in each instrument and specific piece of legislation and I will also consider recent case law. The Complainant stated that he was effectively an “employee” on a Contract of Service as defined by the Minimum Notice and Terms of information Act,1973, Section 1, “employee” means an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly; The Respondent argued that the Complainant was effectively an independent Contractor, and provided Contracts for Service outside of the standard remit of Employment Law. I am mindful of the decision in McAuliffe v Minister for Social Welfare [1994] ELR 239 where Barr J stated that there was no “hard and fast” rule regarding what constitutes a contract of employment and that a court or tribunal must consider the “totality” of the relationship between the parties on any particular set of facts I am also mindful of the Supreme Court judgment of 20 October 2023 in ‘The Revenue Commissioners v Karshan (Midlands) Ltd. t/a Domino’s Pizza’ and even though the case was concerned with the proper tax treatment of the workers concerned the judgment provides an extensive review of caselaw to date in the area of determination of employment status, and succinctly summarises it through the provision of a decision-making framework. The decision-making framework consists of five questions that should be used to resolve the question of whether a contract is one of service (employee) or for service (self-employed). It has restated the position that the terms and conditions of an engagement as set out in a written contract should be considered when determining the status of the relationship. However, they may not be the sole determining factor as the facts and circumstances of that relationship may also have to be considered in the application of the decision-making framework. It has also clarified that there does not need to be a continuity of service, in effect, a worker engaged to carry out one job, gig or shift, will generally be an employee for tax purposes for that one job, gig or shift. The Respondent’s representative referred to the earlier Court of Appeal decision on this case however in the Supreme Court decision they explicitly rejected the ‘mutuality of obligations’ test that had previously been a feature of the case law and it was emphasised that every case depends on the particular facts and that in determining whether an arrangement is one of employment, it is necessary to assess “all relevant features of that relationship, identifying those that are, and those that are not, consistent with an employment contract” and weighing up those factors to determine the correct characterisation as outlined previously in McAuliffe v Minister for Social Welfare [1994] ELR 239. This decision suggested that question of whether a worker is an employee or self-employed should be resolved by reference to the following questions: 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 Supreme Court suggested that the first three questions are to be viewed as a filter. If any of these are answered negatively, there cannot be a contract of employment. If the first three questions are answered affirmatively, questions four and five must then be considered to determine if a contract of employment exists. The judgment clarifies: “To qualify as an employment contract for the purposes of this initial hurdle, however, the consideration must involve a promise of some kind by the worker to work for the putative employer. That promise may be one to work at defined points into the future, it may be to work if called upon to do so, or it may be to work starting more or less contemporaneously with the agreement itself. It may be to work continuously, or over an undefined period as called upon, or for a defined period(s), or for the purposes of completing a specific task(s).”. Turning then to the employer: “The obligations on the employer may be to provide work, to pay for work, to retain the worker on the books and/or to confer some benefit on the worker” The second test and question considers whether the worker has agreed to provide their services to the business personally. This is what is known as the ‘substitution test’. Substitution concerns a worker’s right to appoint someone else as a substitute if he or she is unable or unwilling to do all or part of the work, or never intended to do the work themselves therefore the more restrictions imposed on the freedom for a worker to appoint a substitute, the more indicative the arrangement is that of a contract of employment. The third test is control. Control refers to the ability, authority, or right of a business to exercise control over a worker concerning what work should be done, and how, when and where it should be done. The right of the business to exercise control is more relevant than whether they actually exercise this right. The judgment states: “…the decision-maker is concerned to establish a right of control, over what is to be done, at least generally the way in which it is to be done, the means to be employed in doing it, the time when and the place where it shall be done. That must take account of the nature of the employment and the control an employer would be reasonably expected to exert.”. An additional test to consider, as a subset of control, is the ‘enterprise test’, which considers which of the parties to a working relationship bore the economic risk: “…. it is not possible to separate the question of control from the question of whether the evidence points to the worker carrying on business on their own account.”. A further consideration is the Integration test (the extent to which a worker, and their work, form a coherent part of the business). The judgment states: “It should be viewed as doing no more than articulating a possible feature of some employment arrangements that may negate or support control, and/or might otherwise suggest that the worker is so divorced from the employer’s undertaking that they cannot be properly viewed as being employed within it.” If the first three “filter” questions on work/wage bargain, personal service and control are answered affirmatively, consideration then needs to be given to the entire factual matrix of the engagement. The basis for this ‘filtering’ approach was set out in the judgment as follows: “…. I think the right approach is to view the first three questions I have just identified as a filter in the form of preliminary questions which, if anyone is answered negatively means that there can be no contract of employment, but if all are answered affirmatively, allow the interrogation of all of the facts and circumstances to ascertain the true nature of the relationship. This is what Keane J. in Henry Denny described as the consideration of ‘all the circumstances of [the] employment.” The judgment concludes that these statements: “…mean that where an agreement purports to characterise the relationship between or the status of the parties, that description does not fetter the function of the court in determining what, as a matter of law, the agreement actually is. ..[..].. These statements also require that, as a matter of the general law, an agreement which says one thing when both parties in fact intend another will not be given effect to under the doctrine of sham, or perhaps mistake.” In other words, we need to consider ‘what the real arrangement on a day-to-day basis between the parties was’ in terms of the actual arrangement despite the contractual agreement. And finally, I will consider the legislative context i.e. is there any legislation that requires an adjustment or supplement to any of the above considerations. I have considered this case in relation to the 5 tests under the framework suggested by the Supreme Court as follows: - Question 1: Work/wage bargain: Does the contract involve the exchange of a wage or other remuneration for work?
Answer: Yes. The Complainant’s fee is a set amount for each gig/rehearsal in return for him providing his personal service of being the resident fiddle player for the band over an extended period of time from January 2024 to September 2022 and he was paid every Friday and on occasion for work in advance. Question 2: Personal Service: 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? Answer: The Complainant provides his fiddle playing services for the band as the resident fiddle player and he would get 3-6 months’ notice of gigs in advance normally 3-4 times a week. In the very limited occasions out of the 1,200-1,300 gigs he did he was not available in 2/3 times a substitute was found to cover his fiddle playing for that specific gig, he does not get paid then his substitute gets paid. The substitution however was not considered as a regular option it was an exception which was the case in practice. Question 3: Control: does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement? Answer: Yes. The Complainant has no flexibility as to when the work is performed as the gigs are scheduled in advance, he is told what music to play, wears the band uniform and is instructed by the Company for all work-related matters. Question 4: All the circumstances of the employment must then be considered: 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. Answer: The facts of the case cannot support the Complainant being self-employed for this engagement based on all the circumstances of the arrangement and evidence presented I have found him to be an employee in practice based on the arrangement in place. Question 5: Legislative context: Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires me to adjust or supplement any of the foregoing. Answer: There is no particular legislation there requires an adjustment or supplement to any of the questions and my considerations above. Based on the above test and based on all the evidence presented by the parties both orally and in written submission cand having considered the “totality” of the relationship between the parties I find that the Complainant meets the definition of an “employee” on a Contract of Service as defined by the Minimum Notice and Terms of information Act,1973, Section 1 and the other relevant statutes before me therefore I find the Complainant meets the requirement of the legislation to be considered an employee. TIMELINE On the basis I find the Complainant has met the threshold of being an employee I will now consider the timeline. The Workplace Relations Act 2015 which provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. There are equivalent time limits under the Unfair Dismissals Act, the Employment Equality Act etc. The specific legislation before me today is; the Organisation of Working Time Act, 1997, Payment of Wages Act 1991, Terms of Employment (Information) Act, 1994, Unfair Dismissals Act 1977 and the Minimum Notice & Terms of Employment Act 1973. The date when a complaint or dispute is referred is the date when it is received by the WRC which is 4 March 2022. If a complaint is not referred within the time limit, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the complainant has demonstrated ‘reasonable cause’ for the delay. An Adjudication Officer has no power to extend the time limit beyond 12 months after the last alleged contravention. Having considered the case and evidence presented to me I find that based on the date the claim was submitted to the WRC i.e. 4 March 2022 and the alleged termination date being 22 September 2021 which I find to be the last alleged contravention the Complainant is within the permitted statutory time limit. Relevant to the time line also is the fact the Complainant had no work due to Covid from March 2020 until his termination which I accept was given to him in writing on the 22 September 2021 from the Respondent by email. SPECIFIC CLAIMS AND MY FINDINGS REGARDING EACH CLAIM I am considering all these claims individually based on the evidence presented in relation to each. CA-00049090-001 The Complainant stated he was not given compensation for working on a Sunday. I find initially that the complainant is an employee so this legislation is relevant to him. The relevant legislation states: - (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely: - (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs. (2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement. (3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances: Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances. (4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified. (5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do. (6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings). To summarise: I find the Complainant did not receive a Sunday premium as he received a set amount for each gig/piece of work he did with no mention of Sunday premium even though he did work Sundays and other days there was no differential or premium paid, therefore I find this legislation was breached and this claim is successful. CA-00049090-002 In considering my findings and conclusions I have considered the Payment of Wages Act, 1991 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). I find initially that the complainant is an employee so this legislation is relevant to him. The Complainant stated he did not receive the appropriate payment in lieu of notice of termination of his employment and I accept this was the case as he only received an email confirming his termination of engagement. To summarise: The Complainant stated he was not given notice and payment for same when he received the email from the company terminating his employment on the 22 September based on the evidence I accept this was the case as they were treating him as a contractor and not an employee. CA-00049090-003 In considering my findings and conclusions I have considered the Organisation of Working Time Act, 1997 which states that the definition of a ‘contract of employment’ under the 1997 under the Payment of Wages Act, 1991 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, I find initially that the complainant is an employee so this legislation is relevant to him. I have also considered the requirements of the Organisation of Working Time Act, 1997 which states Entitlement to annual leave. 19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. (2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave. (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks. (4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill. (5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave. (6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week. To summarise: The Complainant stated he did not receive his paid holiday/annual leave entitlement and I accept this was the case as he was paid only for each gig he did and not for any holidays based on the evidence presented. CA-00049090-004 I find initially that the complainant is an employee so this legislation is relevant to him. In considering my findings and conclusions I have considered the definition under Section 27 of the Organisation of Working Time Act, 1997 The Complainant stated he did not receive his Public Holiday entitlement which I accept to be the case based on the evidence presented. The legislation states that (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day's pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. (2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday. (3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay. (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday. (5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule. (6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work. Public holidays: supplemental provisions. 22 -1) The rate - (a) at which an employee is paid in respect of a day off under section 21, and (b) of an employee's additional day's pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section. (2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee. To summarise: The Complainant stated he did not receive his public holiday entitlement and I accept this was the case as he was paid only for each gig he did and not for any holidays based on the evidence presented. CA-00049090-005 In considering my findings and conclusions I have considered the requirements of the Terms of Employment (Information) Act,1994 I find initially that the complainant is an employee so this legislation is relevant to him. The Complainant stated he did not receive a statement in writing in his terms of employment. 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 7 states —(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3 , 4 , 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties. (2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following: (a) declare that the complaint was or, as the case may be, was not well founded, (b) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, 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 commissioner, (d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all 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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership. (3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned. (4) (a) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister. (b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned. (5) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public. (6) A rights commissioner shall furnish the Tribunal with a copy of any recommendation given by the commissioner under subsection (1). (7) The Minister may by regulations— (a) provide for any matters relating to proceedings under this section that the Minister considers appropriate, and (b) amend paragraph (d) of subsection (2) so as to vary the maximum amount of the compensation provided for in that paragraph, and this section shall have effect in accordance with the provisions of any regulations under this paragraph for the time being in force. To summarise: The Complainant stated he was not given a contract of employment in line with the legislation and I confirm based on the evidence he did not receive same and the Respondent accept this was the case as they were treating him as a contractor and not an employee. CA-00049090-006 In considering my findings and conclusions I have considered the definition under Section 7 of the Terms of Employment (Information) Act,1994 I find initially that the complainant is an employee so this legislation is relevant to him. The Complainant stated he did not receive a statement of his core terms in writing.
To summarise: The Complainant stated he was not given a contract of employment or his core terms in line with the legislation and I confirm based on the evidence he did not receive same and the Respondent accept this was the case as they were treating him as a contractor and not an employee. CA-00049090-007 In considering my findings and conclusions I have considered the definition under Section 8 of the Unfair Dismissals Act 1977 I find initially that the complainant is an employee so this legislation is relevant to him. The Complainant stated he was unfairly dismissed and has at least 12 months service. To summarise: The Complainant stated he received an email from the company on 22 September stating they were no longer using his services which they confirm was sent to him as they were treating him as a contractor and not an employee. The Respondent accept this was the case, therefore this in effect was termination of his employment without any process or procedure. I therefore find that this was an unfair dismissal and termination of his employment based on the evidence presented. CA-00049090-008/009/010 In considering my findings and conclusions I have considered the definition under Section 12 of the Minimum Notice & Terms of Employment Act 1973. I have considered all these claims together as they are all in relation to the same breach of legislation. I find initially that the complainant is an employee so this legislation is relevant to him. The Complainant stated he did not receive statutory minimum period of notice on the terminationof his employment or payment in lieu thereof. 12.—(1) If an employer— (a) fails to give to an employee the notice required by section 4 (2) of this Act, or (b) fails to comply with the provisions of section 5 of this Act in relation to the rights of the employee during the period of notice, the employee may refer the matter to the Tribunal for arbitration and the Tribunal may award to the employee compensation for any loss sustained by him by reason of the default of the employer. (2) The amount of any compensation awarded by the Tribunal under subsection (1) of this section shall be recoverable by the employee from his employer as a simple contract debt in a court of competent jurisdiction. (3) Proceedings for the recovery of any sum due by way of compensation awarded by the Tribunal under subsection (1) of this section may be instituted and maintained on behalf of the employee by the Minister or by that employee's trade union. To summarise: The Complainant stated he was not given notice of his termination which I accept to be the case as they were treating him as a contractor and not an employee based on the evidence presented. |
Decision:
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant Act.
Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 7 of the Terms of Employment (Information) Act,1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 12 of the Minimum Notice & Terms of Employment Act 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00049090-001 Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant Act. The Complainant was paid a set rate for all the gigs/work he did when negotiated, both parties were aware of the requirement to work Sunday regularly as part of that negotiation, however, the Complainant stated he was not given specific compensation for working on a Sunday therefore I award him €1,000 compensation in this regard. CA-00049090-002 Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. The Complainant stated he did not receive the appropriate payment in lieu of notice of termination of his employment. The Complainant stated he was not given notice and payment for same when he received the email from the company terminating his employment on the 22 September based on the evidence, I accept this was the case as they were treating him as a contractor and not an employee. I therefore award the Complainant 4 weeks wages which equates to €4,480. CA-00049090-003 Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant Act. The Complainant stated he did not receive any paid holiday/annual leave entitlement. I therefore award the Complainant €5,000 in relation to this claim. CA-00049090-004 Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant Act. The Complainant stated he did not receive his Public Holiday entitlement. I therefore award the Complainant €1,500 in relation to this claim. CA-00049090-005 & 006 I am considering both these claims together and am considering Section 7 of the Terms of Employment (Information) Act,1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. The Complainant stated he did not receive his core terms or a statement in writing in his terms of employment. The Complainant stated he was not given a contract of employment in line with the legislation and I confirm he did not receive same and the Respondent accept this was the case as they were treating him as a contractor and not an employee. I therefore award the Complainant €500 compensation. CA-00049090-007 Section 8 of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. The Complainant stated he was unfairly dismissed and have at least 12 months service. Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement, therefore, I am considering redress to Section 7.1.C, which is financial loss. 7.1.C states at subclause (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, Section 7 goes on to state that in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee— (a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded. Sub section 3 then defines “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; The Complainant stated he received an email from the company on 22 September stating they were no longer using his services which they confirm was sent to him as they were treating him as a contractor and not an employee. He had made it clear to them that he was contesting the fact that he believed himself to be an employee not a contractor and I concur with this in relation to this claim, and I therefore find that this was an unfair dismissal and was an unfair termination of his employment. Based on the evidence presented therefore, I award the Complainant 6 months’ salary which equates to €26,880 of an award. CA–0049090 – 008/009/010 Section 12 of the Minimum Notice & Terms of Employment Act 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I have considered these claims together accordingly. The Complainant stated he did not receive statutory minimum period of notice on the termination of his employment or payment in lieu thereof and the Complainant stated he did not receive all his rights during the period of notice. Based on his service January 2014 until September 2022 therefore notice for 8 years’ service is what I have calculated, therefore, the notice required was 4 weeks, therefore I award €4,480 in relation to this claim. |
Dated: 15th of August 2024
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Key Words:
|