Complainant

Respondent

Anonymised Parties

A Life Coach

A Medical Practise

Representatives

Freehill Craughwell Solicitors,

Stephen O’Sullivan BL,

Enda P Moran B.C.L.

Enda P. Moran Solicitors,

Claire Bruton BL,

Christina O’Byrne BL.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034584-001

12/02/2020

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

CA-00034584-002

12/02/2020

This hearing was primarily conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 12th of February 2020.

On the second day of hearing (the 8th of March 2022) this matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having part of  this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. The in-person hearings resumed thereafter.

I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line account of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

A preliminary application was made to anonymise this decision. The Application was made by the Respondent and no objection was raised by the Complainant. I am aware that the hearing ought to generally be conducted in Public unless the Adjudication Officer decides following an application from a party to the proceedings, that due to the existence of special circumstances, the proceedings should be conducted in private. I have decided to acquiesce to the Respondent’s request in this matter. The Respondent has a medical history and diagnosis which (if revealed) would severely impact her standing as a practitioner of General Medicine. Much of the evidence pivots on the Respondent’s mental health and this cannot be avoided. I am satisfied that the Respondent has provided the special circumstances which persuades me to anonymise this decision. In such circumstances, an anonymised version of this decision will be uploaded onto the WRC website.

Initially the Complainant was fully represented. The Complainant finished out the hearing days by representing himself. When giving his own evidence, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 12th of February 2022 just prior to the second day that this matter was listed.  The Complainant additionally relied on the submission and information outlined in his Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case throughout the hearing days. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. In particular, the Contract of Employment introduced by the Complainant was challenged.

The Complainant alleges that he was Unfairly dismissed, and that the summary nature of the said dismissal denied him of his Notice entitlement.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant. AS it turned out, this was not required.

The Complaint form is dated the 12th of February 2020.

The Respondent had representation at this hearing.  The Respondent provided me with two written submissions. The first was provided on the 28th of June 2021 and the second was provided on the 22nd of November 2021. Appendices and supporting documentation were forwarded in time for the second day of hearing in March of 2022. I have additionally heard from a number of witnesses for the Respondent entity. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.The Respondent witnesses were cross examined by the Complainant representative or the Complainant himself when the Complainant took over the running of his own case.

The Respondent is Medical Practitioner who owns and runs a General Medical Practise. The Respondent Doctor rejects that there has been an Unfair Dismissal and does not accept any contravention of Employment Rights as protected by statute. In particular, the Respondent has made and vehemently asserts the premise that the Complainant has, in fact, never been an Employee of the Respondent medical practise. The Respondent reasserts that the Complainant was engaged and contracted in to provide administrative services on an interim basis.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced over the course of five days of hearing. The parties first came before me on the 23rd of November 2021 at which time the issue of a potential criminal investigation was raised though it is unclear to me if this ever amounted to anything. At the time, I was told by the Respondent’s representative that the Complainant had fraudulently extracted up to €64,000.00 from the Respondent through mortgage deposits, car loans and through other nefarious means. On the second day of hearing on the 8th of March 2022, it was agreed that the Respondent would go into evidence first but that this was without prejudice to the fact that the Respondent, in the first instance, denied that the Complainant was or was ever intended to be an Employee of the Respondent’s Medical Practise.

The Respondent therefore gave her evidence over the course of two days. I note that the Respondent gave her evidence on Affirmation. As well as being a General Practise Doctor the Respondent is a swimming coach and it was through this sport that the Respondent met the Complainant who was also a swimming coach. The two became friends (from in and around October 2017) and the Respondent says that the Complainant unburdened himself on her. The Respondent was concerned for the Complainant’s personal situation. At the time, she says that he was in severe financial difficulty, he had fallen out with his family and was trying to extract himself from an unhealthy relationship. She responded, it seems, with generosity. The Respondent helped the Complainant find somewhere to live. She helped with the finances. The Respondent and the Complainant went on different holidays together. The Respondent then allowed the Complainant to operate his private life coaching enterprise from one of the consultation rooms in her medical practise. In the course of the hearing the Respondent representative opened the CRO business name register to me which shows that the Complainant was operating a Consultancy business as a Life Coach from February 2018.

The Complainant, in turn, was happy to reciprocate with his time and between clients he began by assisting the practise Manager in this busy medical practise. He suggested that he could business coach members of the Respondents staff and that he could work on the Respondent web site which needed updating. As it happens, the Practise Manager went out on an extended period of sick leave, and this created a vacuum in the Respondent’s workplace. The Respondent said in her evidence that the functions carried out by the Practise Manager were distributed amongst her staff but that a large portion of the work was not capable of being performed by her medical staff. The Respondent says that she and the Complainant struck a deal that he would complete the task of payroll as well as continue with the website development he had been previously engaged to do. The Respondent says that they struck an agreement that he would charge €100.00 per hour and that he would end up working for her for up to twelve hours a week. I am satisfied that the Complainant gradually came to do many tasks in the practise and that he became the Respondents right hand man per the staff nurse who gave evidence.

The Respondent categorically denied that there was any suggestion at this time that the Complainant was to join the practise as a member of staff. The Complainant, to her mind, was operating on a consultancy basis and this was intended to operate until the original practise manager returned. It seems to be common case that the Complainant had access to the Bank Accounts from which the Medical Practise operated. There was nothing unusual or untoward in this. Allowing the Practise Manager full access has always been the Respondent’s policy, she said. On her own admission the Respondent agreed that she tried not to deal with the business end of the medical practise, concentrating instead on the patients and the medicine.

A Contract of Employment has been opened in evidence. This document is significant and highly contentious as the Respondent denies that she ever signed such a document or that there was ever an agreement struck between the parties to from an employment relationship. Much of the Complainant’s case hinges on the existence of this particular document. The Respondent says that she does not recognise this document as one which would have issued from her.  The Contract appears to have been signed by parties and the intention expressed therein is that the Complainant was to be a full-time permanent member of staff on a salary of €94,000.00 (or €7,833.00 per month). The start date of this Contract is noted to be the end of March 2018. I understand that the Contract was to give the Complainant the role of Director of Operations. I note that the absent practise Manager had been on a salary of somewhere between €40,000.00 and €50,000.00. the Respondent herself stated that the Practice could never have sustained such a salary.

The Respondent representative asked me to consider some separate communications between the Complainant and a third-party HR company. The Respondent medical practise engages a HR company for all its HR needs, but it is not the one which the Complainant was using in the course of these emails dated from July of 2018. The correspondence is between the Complainant and this third-party HR company. The Respondent has introduced this documentation as being illustrative of the intended relationship at that time. The Respondent herself was not cc’d on these emails and knows nothing of the partnership arrangements (between the complainant and Respondent) averred to therein. More importantly the Respondent suggests that these emails show that the Complainant was looking for a Contract of Employment to be prepared by the HR company. Given that this was July of 2018, and therefore some four months after the March 2018 Contract of Employment (which the Complainant had tendered in evidence) the Respondent suggests that these two positions are irreconcilable. This point was hammered home a number of times.

I was shown an alternative style Contract which it was claimed issued out of the Respondent practise to all employees. I would have to accept the Complainant’s assertion that this evidence has little weight as it post-dated the one provided by the Complainant – by four years. Independent evidence adduced by Employed Nurse seemed to suggest though that her Contract was entirely different to one introduced by the Complainant.

The Respondent and her witnesses have also stated that the Payslips (dated May, June and July 2018) provided by the Complainant as evidence of his employment status are not similar to the payslips that the payroll provider uses for all other members of staff.

The Complainant says he commenced his Employment on or about the 16th of April 2018 and that the employment terminated on the 15th of October 2019. There was therefore an eighteen-month period in this workplace. He says that there was an agreement between them to pay him €94,000.00 per annum as a wage  He says he dedicated all of his time to building up this medical practise and was happy to do it. The Complainant says that that he understood that the Respondent was discharging  his tax and PRSI over and above the payment he got into his Bank account (amounts of €4,150.00 and €2,200.00) per month. He was therefore asserting that the sums paid were nett salary payments less the lawful deductions. I was provided with no evidence to demonstrate that tax and PRSI payments were made in respect of the Complainant from the Respondent medical practise. The Complainant says that both his and the Respondents payslips were paid other than through the Payroll system which applied to other members of staff. What does seem to be irrefutable is the fact that the payslips provided by the Complainant do not match the payslips held by all the rest of the staff. The Complainant says that this is because the Respondent issued his payslips directly and separately through her own Accountant. The Respondent rejects the veracity of this.

The evidence provided by others in the workplace certainly suggested that the Complainant might have attended the practise as little as one day a week and that he generally was seen by the staff in situ as coming and going as he pleased and without reference to them or the Respondent.

There can be no doubt that the relationship between the Complainant and the Respondent was predicated on the potential of a more personal one and that, in particular for the Respondent, there was a hope that it would and could go further. This is evidenced by the different holidays. Certainly they went on a number of holidays together including, it seems, a trip to Riga funded by the Respondent to get his teeth done which was a birthday present.

It is in consequence of this entanglement that discussions around jointly buying a property, the handing over of a €35,000.00 deposit and the upgrade and exclusive use by the Complainant of a vehicle owned by the medical practise were all in the mix at this time. I understand that the Respondent gave personal loans and personal Guarantees in the course of this friendship. In fact, in the course of her evidence the Respondent stated that she was making provision as they were starting a long term relationship. These matters are outside the competency of this Tribunal but must, of necessity, be part of the background noise. Both the Complainant and the Respondent liberally referenced matters of a personal nature in the giving of their evidence.

I was for example brought through a series of emails between the parties drafted in the course of July and August 2019. They demonstrate the nature of the entanglement at both a personal and professional level.  It is clear that the Respondent is particularly aggrieved that the promised relationship did not materialise and there is an element of bitterness that the Complainant has moved on. Indeed, in his direct evidence the Complainant says that he was never keen to grow their relationship and that the Respondent felt re-buffed and that matters became acute after the Respondent saw the Complainant with a new partner. The text messages opened to me were deeply personal and very upsetting.

It is also clear from the evidence provided that the Respondent was not particularly well during this time. In fact, the Respondent was admitted into a psychiatric hospital in and around October of 2018 following an extended period of out-patient treatment in the months running up to October 2018. The Respondent’s work was covered by Doctors hired in on a locum basis which was very expensive. The Respondent says that the Complainant had visited her in the Hospital on a number of occasions and had even raised the issue of a potential partnership arrangement at one of these meetings. I accept that given her vulnerable state this might be perceived as coercive. The Complainant himself suggests that he was trying to protect her and her practise into the future.

The Respondent gave evidence that she had understood for the second half of 2018 that the Complainant was working in her practise on a consultancy basis doing up to 12 hours a week.  He would work these hours across three days and should have been charging and getting paid €1,200.00 gross per week for this. The Respondent says that the Complainant was expected to bill the practise for the hours done as was the case for all casual contract employment but at a point unknown he had set up a standing order for €2,150.00 every two week no matter how many hours he did or didn’t complete. The payments of €2,150.00 were paid through leave periods and illness periods, which is not consistent with consultancy work. The Respondent says she understood that the Complainant was responsible for all his own taxes and other financial liabilities such as USC and PRSI. She further understood that he was running his coaching business form her practise and had other larger clients (such as Trinity College and Terenure Collage) for whom he did in-house work (as evidenced by his 2019 Tax Credit Certificate). While the Respondent was out on extended sick leave it seems that the Complainant might have changed the access codes to the practise Bank Accounts.

The Respondent was on a psychiatric ward from up to three months returning in early 2019. It took the Respondent a little time to get back into the workspace and to come to terms with how embedded the Complainant now was in her practice. The Respondent says that she was finally woken up to what was going on by her Practise Nurse. In particular, the said nurse advised that she was concerned that the Complainant was signing documents in the Respondent’s name. The nurse gave evidence that the Complainant had boasted to her of his skill in this regard. This is an allegation the Complainant strenuously denies. The Respondent says she knew that she had to take matters in hand though there was still a hope on her part that a relationship might develop. Some time was spent dwelling on the personal text messages exchanged between the Complainant and the Respondent. They make for quite upsetting reading and tend to portray the Respondent as deeply disappointed that their relationship will not be as intimate as she had hoped.

Other worries for the Respondent were mounting. The Respondent was also forced to submit to Medical Council enquiries at this time arising out of her failure to notify the Medical Council that she was out on sick leave.

By July of 2019, the Respondent was better abler to determine what she wanted to do. In particular, she had formed the view that whatever relationship existed previously between herself and the Complainant was now gone and as such she wanted him out of the practise. She said as much to him when her own staff staged an intervention asking her to restore good will in the practise. In the conversation she has him, the Respondent says that the Complainant agreed he would leave by the 1st of September 2019.

The Complainant suggested that the Respondent tried to justify the termination of his employment after she had fired him. For example, she has suggested that he bullied the other members of staff. He says that she became enamoured of him and that she was jealous when she could see he had started a relationship with another woman.

By now it seems that the Complainant was also running a popular Keto clinic out of the practise. The Complainant was uneasy with this development as the Complainant claimed he was a nutritionist when the Respondent was pretty certain that his was not the case. By now the Respondent feels that the Complainant was working about two days a week from the Practise and was operating as the part time practise Manager in so far as the accounts were being operated by him. The Respondent admitted that she had not had sight of the accounts from November 2018 to August 2019. The Respondent had broached the subject with the Complainant who had suggested that the Complainant was not well enough. The Practise had acquired a new set of accountants in this time and the Respondent concedes she was happy with the new accountants. The Respondent was additionally dealing with some Medical Council issues which were worrisome as her livelihood was dependent on continued support and sanction from the medical council.

The parties have given such conflicting accounts of how or what was intended to be the arrangement between them. There can be little doubt that the Respondent was in need of some organisational assistance at the precise time that the Complainant came into her life. What is also clear is that there was some other more personal friendship struck up between the parties which blurred the normal lines expected in a professional set up.  Also there seems to have been some reciprocity and the Complainant was encouraged to run his Keto and Life coaching businesses out of the Respondent’s premises in return for what she understood were his consultative services.

In short, I cannot reconcile the two different accounts. As previously noted, it is difficult to cut through to the real intention of the parties when other things got in the way. However, as it happens, I have been able to look to an independent appraisal of the workplace during this period of time. In November of 2018 (some 8 months after the Complainant started in the workplace) a complaint was made by an (already departed) ex-employee to the Workplace Relations Commission concerning the non-payment of wages and holiday pay. The complaint triggered a full WRC investigation and the paperwork around that investigation was made available and opened to me. The WRC Investigator (AB) liaised directly with the Complainant who signed himself off as the Director of Operations for and on behalf of the Respondent medical practise. I can see from the relevant paperwork that the Complainant worked tirelessly and co-operatively with AB to bring about a full resolution and ensure that the in-house payroll processes were improved upon. I have seen the volume of email and postal correspondence.

The Respondent has asked me to consider a number of matters (documents) contained in this independently prepared file which throw light on the Complainant’s employment status. For example, the Complainant has clearly identified that there are five employees in the practise, and he himself is not included on the list of names provided. Of the five names given three are names of employees who have come into the practise after April 2018 (the Complainant’s alleged start date) and so this is not an old list, or one carelessly pulled together. The Complainant was aware when putting this list together who was and who was not an Employee. Elsewhere, the Inspector (AB) has noted that there are five employees and four self-employed persons. In this regard, the Respondent has suggested that both the Complainant and the Respondent are in the category of self-employed together with a psychotherapist and neuromuscular expert.

Perhaps the most interesting piece of information gleaned in the WRC Investigation concerns a telephone conversation held between the Complainant and AB - who is an utterly independent party – wherein she has noted that the Complainant describes himself as being engaged on a Contract for Service. This conversation took place on the 1st of August 2019. Well over a year after the Complainant entered into the workplace. I am satisfied that the conversation captured by AB, and included in the comprehensive file prepared by her as a part of the thorough investigation carried out by her, is accurate and true. As such I accept that it represents an accurate account given by the Complainant (at that point in time) of what he believed his employment status to be.

I was impressed by the independent evidence provided by Mr M who was an Accountant and Tax Consultant who had been engaged by the Complainant to scope out the requirements of the practise. Mr. M stated that he understood the Complainant to have described himself as a consultant working in the practise. In fact, at one point the Complainant had asked Mr. M if he could consult on the separate issue of the Complainant’s own tax affair. Mr M gave the evidence that the sage payroll in operation for all the readily identified employees was different to the payroll presented by the Complainant in his payslip. They were visually different. Mr. M also noted that the practise had no PPS number on file for the Complainant and that no P35 returns ever included the Complainant as an Employee. This interaction between the Complainant and Mr. M was in May of 2019.

The Independent witness psychotherapist also gave evidence. She had a room in the practise and understood that the complainant likewise ran a private coaching business from the medical practise often using the same room as her. She felt that the Complainant was not beholden to any particular schedule. She observed he performed some tasks for the practise as well as running his Keto and coaching enterprises from the medical centre.

I was impressed with the witness who has since become the practise Manager but who had also been the lead receptionist at the time that the relationship between the parties herein started to deteriorate. She was eight years with the practise. She knew the Complainant as the person with whom her boss had been on holidays before ever he came to work on site. Initially he was running his coaching life business in one of the consultation rooms. Over time she observed he’d be in the back office doing administrative work and she understood he was helping update the website. When the practise Manager went out, she understood the Respondent to say that the Complainant would be stepping up to take on some of the Practise Manager roles while they waited for her to return. Her evidence was clear that her Contract of Employment issued by the Respondent medical practise were materially different to look at then the one that the Complainant had presented as being the one given to him by the Respondent.

The Methadone Clinic Nurse gave forthright evidence concerning the toxic and deteriorating nature of the relationship between the Complainant and the Respondent. I was impressed with this witness who gives her services on a voluntary basis. She was the member of the medical staff concerned that the Complainant might be inclined to sign on behalf of the absent doctor.  In a meeting she had with the Complainant and the Respondent and at which she referenced the atmosphere between them, she was taken aback that the Complainant said that it was all about sex. To be fair to him, the Complainant agreed that this had been said by him in just such a meeting.

With the benefit of hindsight, the Respondent described herself as naïve and stupid. Bringing the Complainant on board had been a disaster. She said she was lucky to have a practise at all after he was gone. Her staff rallied to her side and made it possible. Gradually she righted the ship. She squared things off with Revenue, got payroll up and running and  dealt with the medical council. She lost valued staff over this period of time and has the sense that they left by reason of their treatment at the hand of the Complainant.

On balance, I do not think it would be rational or sensible to suggest that there was a Contract of Employment in existence between these parties. I am inclined to accept that once the Respondent came to understand that the Complainant did not intend pursuing a relationship with her and had in fact begun one elsewhere, then she had to extract what little dignity she might have felt she had in the circumstances. To this end the casual arrangement entered into between the parties some eighteen months earlier needed to be terminated. My sense is that the Complainant was reluctant to be pushed aside as he had done work and he believed he had been genuinely supportive. He felt he should not be blamed for not wanting to take a personal relationship any further.

On balance I am inclined to accept that the Complainant prepared a Contract of Employment to suit his own purposes. I am assuming that this was prepared at a point long after the date given on the Contract and backdated. I am therefore ascribing something underhand to the Complainant. This is the only piece of purported evidence which tends to suggest that it was intended that the Complainant was to become an Employee. Once this purported Contract of Employment is taken out of the picture there is no evidence to suggest that the Complainant was anything other than a person providing a bit of consultancy work in return for use of consultation rooms.  As previously noted, as late as August 2019, the Complainant himself acknowledged he was in the practise under a Contract for Services.

Because of the nature of the relationship between the two protagonists I had to be particularly mindful of any of the independent evidence that was adduced. All that evidence pointed to a Contract for Service arrangement.

I have considered the authorities to determine the Complainant was operating as an employee under a Contract of Service. I am mindful of all the tests including mutuality of obligation. However, I do not believe I need to perform a deep dive into the authorities as, to my mind the Complainant relied so heavily on the Contract of Employment as to render all other tests as secondary  and insignificant. Having now rendered that Contract of Employment as without merit or substance there are no other facts on which the Complainant can readily rely on as establishing his claim.

I can say that there does not appear to have been an obligation on the Respondent to provide work for the employee who, in turn, was obliged to perform the work. The Complainant came and went of his own volition.

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

CA-00034584-001 – The complaint fails in circumstances where the Complainant was not an Employee engaged under a Contract of Service. He was an independent Contractor.

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

CA-00034584-002  - The complaint fails in circumstances where the Complainant was not an Employee engaged under a Contract of Service. He was an independent Contractor.