Complainant

Respondent

Anonymised Parties

A Labourer

Estate of a Named Person-Deceased

Representatives

 Self - represented

Aoife McMahon BL, instructed by  William O’Reilly Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00062434-001

25/03/2024

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

CA-00062434-002

25/03/2024

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

CA-00062434-003

25/03/2024

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

CA-00062434-004

25/03/2024

The complainant states that he was engaged by Ms CR in November 2009 as she was looking for someone to walk her dogs. The complainant states that he was initially employed at the weekends on Saturdays and Sundays working an hour and a half each day. The complainant states that in or around November 2011 he worked 3 hours 5 days a week. The complainant states that from November 2013 he worked 5 hours a day 5 days a week. The complainant states that the agreement was that he was paid €316.66 for 25 hours worked and also received €100 cash per week from Ms CR. His duties included walking the dogs, looking after retired horses, chauffeuring Ms CR to the races, hospital appointments and general labour tasks such as mowing the lawns, topping the fields and farming duties. The complainant stated that on occasion if he was unavailable he sent his son to carry out the duties in his place.     

The complainant states that from 2017, he was requested to send in invoices for work done. The complainant states that he never received a statement of employment. The complainant states that he did not receive holiday pay or sick pay.

The complainant states that he went into work as usual and on 22 August 2023 he got a call from Ms CR’s brother Mr AF stating that his services were not required any longer. The complainant states that when he asked Mr AF why he was being let go, Mr AF replied “you don’t need a reason, you are self employed”. The complainant states that he feels very aggrieved in the manner in which he was treated after giving loyal service to Ms CR. The complainant states that he was unfairly dismissed by the respondent.  

The complainant states that the reason he did not get the WRC Complaint Form within the 6 months time limit was because he was in contact with Scope section in the Department of Social Protection and was awaiting a decision and this was the reason for the delay in lodging the complaint with the WRC. The complainant stated that he is seeking an extension of time on the basis that he was in contact with Scope section with regard to the matter.

The respondent asserts that the complainant lodged a WRC Complaint Form on 25 March 2024 in respect of three complaints (i) he did not receive a statement in writing of his terms of employment (ii) he was not notified in writing of a change to the terms of his employment (iii) that he was unfairly dismissed and has at least 12 months service.

Background

The respondent states that the complainant provided husbandry and garden maintenance services to the respondent from 2009 to 2023. It states that these services were provided to Ms CR who passed away on 17 December 2023. These services were provided at her home. Ms CR’s brothers, Mr AF and Mr NF are the legal personal representatives of her estate. The respondent states that the estate is limited in value and the legal personal representatives believe it will not be sufficient to meet payments due for testamentary / administration expenses and preferential debts.

Preliminary Issue -Time Limits

The respondent states that the complainant claims that he was dismissed on 22 August 2023, therefore the 6 month time limit expired on 22 February 2024; however the complainant lodged his complaint over a month later on 25 March 2024. The respondent asserts that the complainant submits that he “could not make an unfair dismissal claim until Scope had completed their investigation hence the delay in submitting the complaint”.     

The respondent states that the complaint is statute barred. In this regard, it cites the Labour Court case in Cementation Skanska v Carroll WTC0338. The respondent further states that an extension of time has been refused in respect of reasons submitted such as ignorance of the existence of the WRC (Morgan v Total Expo Ltd. ADJ 33037) and initiating a claim against an employment agency rather than an employer (Shannon Transport v Miller UDD2210).

The respondent submits that it also relies on O’Brien v Sierra Communications Ltd. UD435/2013; in that case the Employment Appeals Tribunal refused an extension of time in circumstances where the complainant had awaited the outcome of a Scope investigation of the Department of Social Protection. The respondent states that for the same reason as in O’Brien v Sierra Communications Ltd. It is submitted that the complainant has not demonstrated reasonable cause for his delay in lodging the within claim.   

Provision of services as an independent contractor

The respondent states that in Revenue Commissioners v Karshan [2023] IESC 24, the Supreme Court set out guidance on the proper approach to determining whether a person is an employee or a self-employed person. The respondent asserts that in this judgement, the Court made clear that the correct approach was to ask the following questions:

(i)                  Does the contract involve the exchange of wage or other remuneration for work ?

(ii)                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 ?

(iii)               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 ?

(iv)               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.

(v)                 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 respondent states that in respect of question (i) the complainant was initially paid by cash and in an effort to regularise the position, the complainant was asked to submit invoices in 2017. The respondent asserts that it was understood that the complainant at all times was responsible for paying PRSI as an independent contractor and he negotiated his pay with Ms CR.

The respondent asserts that in respect of question (ii) the complainant on occasion had his son or nephew carry out the work in his place and there was no difficulty with this. The respondent states that it did not carry out any vetting of these persons. It states that the complainant was free to have other persons carry out the work in his place. The respondent asserts that it engaged the services of an agency for dog sitting to carry out these services when the complainant was not available.

The respondent submits that in respect of question (iii) while the complainant was paid for set hours per week, in reality he was free to carry out the work when it suited him and he often came to work as early as 6.30. The respondent states that additional payments were made for additional work such as when he drove Ms CR to the races.

The respondent asserts that in respect of question (iv) the complainant was free to and did provide services elsewhere at a Named Farm.

The respondent submits that in light of all the above factors, it is evident that the complainant provided services to the respondent as an independent contractor and was never an employee of the respondent within the meaning of the Unfair Dismissals Act or the Terms of Employment (Information) Act.    

I have given careful consideration to the submissions of both parties to this complaint. The respondent raised a preliminary matter submitting that the complaint was referred outside the six-month limitation period provided by the legislation.

The complainant states that he was dismissed on 22 August 2023, however he lodged his complaint on 24 March 2024 over a month outside the time-frame set out in the legislation. The complainant sought an extension of time on the basis that he was in contact with Scope section in the Department of Social Protection and was awaiting an outcome of its investigation. He submits therefore that his circumstances constitute reasonable cause for the delay in referring his complaint.

The Applicable Law

Section 8(2) of the Unfair Dismissals Act, 1977 states as follows:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General… to the employer concerned as soon as may be after the receipt of the notice by the Director General.

Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska v Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

The legal test for establishing reasonable cause as set out above requires that a reason is given for the late referral of the complaint. The reason(s) given must both explain and excuse the delay and if these conditions are met, an extension of time may be granted to the complainant.

I am cognisant of precedent caselaw in circumstances where an extension of time has been refused in respect of reasons submitted such as ignorance of the existence of the WRC (Morgan v Total Expo Ltd. ADJ 33037) and initiating a claim against an employment agency rather than an employer (Shannon Transport v Miller UDD2210).

I am also mindful of the caselaw in O’Brien v Sierra Communications Ltd. UD435/2013 wherein the Employment Appeals Tribunal refused an extension of time in circumstances where the complainant had awaited the outcome of a Scope investigation of the Department of Social Protection. In that case the EAT found that the complainant had not demonstrated reasonable cause for the delay in lodging his complaint.

The Labour Court in the case of Forever Therapies Ltd v Laura McNamee EDA 2132 found that the complainant who had delayed referring her employment rights complaints to the WRC until after the Scope process was concluded did not meet the threshold of establishing reasonable cause.  

Having carefully examined the within complaint and having considered the case law cited above, I find that the complainant has not satisfied the “reasonable cause” test as set out in Cementation Skanska v Carroll DWT0338.  In the circumstances, I find that the within complaint is statute barred.

I find that I have no jurisdiction to hear the within matter as the complaint is statute barred.

Unfair Dismissals Act, Terms of Employment (Information) Act, Organisation of Working Time Act, complaint out of time