Complainant

Respondent

Parties

Eugene  O'Connor

Altada Technology Solutions Limited   (in liquidation)

Representatives

Scott Barry Frances E Barron Sol

 No Attendance

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-00052373-001

23/08/2022

The Complainant is a medical doctor. He worked for the Respondent based in the UK which included most of the ‘Covid’ period. The engagement was on a part time basis over a three-day week with the remainder of his working hours spent with a GP practice in London. The Respondent is an AI Company engaged in providing systems containing data driven decision making. The complaint of unfair dismissal is concerned with the fact and manner of the termination of his contract by the Respondent in February 2022. One issue which arises is the location of the employment for the purposes of jurisdiction; another is the status of the Complainant for the purposes of the UD Act, i.e., was he an employee. The Respondent is in liquidation.

The Complainant contends that he was an employee of the Respondent for the purposes of the legislation and was unfairly dismissed by way of a telephone call in February 2022 later confirmed by way of an email. Throughout his employment he was based in London travelling to the HQ in Cork as required but limited by Covid at various stages.  At one point, the Respondent provided an office for him in London. He maintains that the  relationship commenced in early 2020. Written contracts were agreed in January 2021 and November 2021 . The only significant change between the two contracts was the rate of pay which increased in the second contract, amounting to €175000 per annum(the figure stated at the hearing) On the completed form the figure is a monthly one which would amount to approximately €180k per annum. On the November 2021 contract, the figure for fees is given as 170k sterling. The role of the Complainant was to provide medical advice on the design of certain software and to engage in the development of partnerships. He was in charge of a small team of 2-4 employees. He reported to and liaised with the CEO and the COO at different stages. He was part of the senior team of which there were frequent high-level meetings, describing his role as part of the architecture of the company. Payment was to be in monthly instalments for which he submitted invoices. There were difficulties with some payments with a significant underpayment still outstanding. He had a 28-hour contractual week spread over three days usually  Monday Tuesday and Friday as per his contract. For his remaining working hours, he worked elsewhere.

The Complainant accepts that the contracts he signed referred to him as a person engaged as a self-employed contractor, however courts and statutory bodies may still conclude that a person in his situation is, in fact, an employee.

I took the Complainant through the Revenue Commissioners  Code of Practice on Determining Employment Status 2021 which he had cited in his submission, relating his position to the individual factors contained in that schedule of typical characteristics of an employee. His evidence on each point in the Code  was as follows:

a.      Is under the control of another person who directs them as to how when and where the work is tobe carried out: The Complainant reported directly to the CEO or the COO is respect of his work; he participated in senior management team meetings known as the c-suite team; he worked either remotely due to Covid or in an office supplied by the Respondent.

b.      Supplies Labour Only. The Complainant supplied only labour.

c.      Receives a fixed hourly/weekly/monthly wage. The Complainant had a fixed annual salary in each written contract except for an agreement to receive a shareholding of 1% which never materialised. He submitted an invoice each month for a fixed monthly payment without VAT.

d.      Does not supply materials for the job. The Complainant was offered a company laptop but preferred to use his own. He did not provide any materials for the job.

e.      Does not provide equipment other than the small tools of the trade. Again, only the laptop-his own choice.

f.       Is not exposed to personal financial risk in carrying out the work. No-acknowledging that the contract provided that he obtain professional indemnity, this was in keeping with his requirement to have such cover as a medical practitioner.

g.      Does not assume any responsibility for investment and management of the business. None in the sense of any financial or statutory responsibility for oversight or governance of the financial aspects of the business.

h.      Works set hours or a given number of hours per week or  per month. The Complainant stated that he logged in at 9 30 each working day. His normal working days were Friday, Monday and Tuesday.

i.       Receives expense payments to cover subsistence and/or travel expenses. The Complainant was paid expenses for travelling to Cork -the HQ of the Respondent. Travel was more limited during his employment due to Covid.

j.       Is obliged to perform work on a regular basis that the employer is obliged to offer to them(mutuality of obligation). The Complainant worked a regular three-day week. He could not substitute another person for his work. He and his team would be asked to consider topics, to assist in proposing products and to look for a potential market.

In relation to the complaint of unfair dismissal, a Mr Beechinor rang him on 26 February 2022, informing him that ‘this’ is not working out. On 28 February he received an email saying that he would like a presentation/documents ‘as evidence of his investment’ or something like that. This was not the same as what was said in the call on February 26th. The Complainant put a portfolio of information together, however Mr Beechinor never kept any of his appointments(with the Complainant). There was a brief exchange of texts in March but no further follow up by Mr Beechinor after 11 March 2022. Contact with HR failed to elicit any further information.

 A complaint of unfair dismissal was submitted to the WRC on 23.08.22.

In summary, the Complainant contends that he was an employee for the purposes of the Unfair Dismissals Act 1977 as amended. He was dismissed without notice or any procedural process which was unfair under the Act.

The Respondent did not engage with the WRC at any stage and is now in liquidation.

Preliminary Issue: Jurisdiction for the purposes of the complaint. I noted at the hearing that the remuneration and other arrangements between the parties commenced while the UK was in the EU. Formal contracts were concluded after the exit of the UK from the EU-known as Brexit. The Complainant worked out of London and paid his taxes there. Regarding the jurisdiction of the WRC to consider and decide the complaint, I note the terms of clause 20.1 of the contract of November 2021 where it states: Each irrevocably agrees that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation(including non-contractual disputes or claims).

I note also that the Complainant did not work separately from the operation in Cork-that the arrangement to work in the UK was probably of more convenience to the Complainant in that it allowed him to reside in the location of his other employment and to continue to work in that location. His in-person presence in Cork throughout the contracts 2020 – 2022 was significantly  reduced by Covid.

I am satisfied that I have jurisdiction to decide the complaint of Unfair Dismissal both by reference to the actual working arrangements and the terms of the agreed contract.

Preliminary Issue: employment status for the purposes of the Unfair Dismissals Act.

Based on the evidence of the Complainant having regard to the terms of the Revenue  Code of Practice 2021 relied upon by the Complainant, I find that the Complainant was an employee for the purposes of the Unfair Dismissals Act on the basis that his working and contractual arrangements were consistent with the majority of the items on the checklist contained in the 2021 Code of Practice.

 On the test contained in that code concerned with mutuality of obligation, the standard test set in the Revenue guidelines  was considered at length  by the Supreme Court in Karshan Midlands Ltd T/A Dominos Pizza where that Court found that a contract of service is deemed to be in existence between the parties when the following tests are satisfied(note I have included a note under each point containing a  conclusion or finding based on the evidence in this case:

“

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

In this case ADJ41359 the answer is in the affirmative.

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?

In this case ADJ 41359,the answer is in the affirmative.

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?

Having heard the evidence of the reporting relationships, the extent of meetings and taking into account the unilateral manner in which the contract was terminated, the test for the purposes of ADJ 41359 is found to be satisfied. 

4.        If these three requirements are met the decision maker must then determine whetherthe 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.

        Having found that the three requirement specified by the Supreme Court were satisfied by the nature of the actual practical relationship which existed between the parties and allowing that the service provided by the Complainant was solely for the benefit of the putative employer I find that the tests set by the Supreme Court in Karshan Midlands Ltd have been met, finding that no alternative  form of contract existed which could adequately  describe the nature of this employment relationship other than a contract of employment.

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.

I have no evidence of anything in the particular legislative regime under consideration that requires an adjustment or supplement to any of the foregoing. Nonetheless for the sake of completeness and given the location from which the work was mainly  performed, I have examined the test applied by the UK Supreme Court in the case of ‘Deliveroo’ riders which had not issued at the time of the judgment of the Irish Supreme Court.   

.’.

In the UK where their Supreme  Court recently decided against ‘Deliveroo’ Riders in a case where they were seeking trade union recognition based primarily  on an employment relationship , the main reasons cited by the UK Court in rejecting the riders claim were that they could engage substitutes for their agreed rosters; they could work for any of Deliveroo’s competitors; the riders were free to work or not as was convenient to them. As such arrangements or contractual terms  did not exist in the case of the Complainant, he is not excluded from the definition of an employment relationship as a contract of service by the ‘Deliveroo’ Judgment.  it could be said he succeeds in his claim that he was employed on a contract of service according to the terms of  tests set by statutory bodies in the past two years in both of the jurisdictions which were comprehended by  this employment relationship: the Revenue  Code of Practice, the Supreme Court Karshan Midlands Ltd T/A  Domino’s Pizza; the UK Supreme Court,  Deliveroo.

Complaint of Unfair Dismissal

UD Act 1977 as amended  Definitions

“contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;”

The conclusion in the case of the Complainant is that he was an employee of the Respondent for the purposes of the definition of a contract of employment in the interpretation section of the Unfair Dismissals Act.

Once the test for an employee’s contract of service contained  in the Unfair Dismissals Act is met, what remains to be decided is if the Complainant was unfairly dismissed. Based on the account given by the Complainant, that test is easily satisfied by him in this case. He received a call to say the contract was terminated. According to that evidence, no reasons of substance were put forward by the Respondent in that call  in February 2022. The Complainant refers to being confused by the call as he was also asked to provide information to the Respondent  which he never received an opportunity to present to the Respondent. Instead, the termination of his contract as per the phone call on 26 February was later confirmed. The substance of the reasons was never put in writing subsequently, which would have allowed the Complainant to counter those reasons and neither did any process of inquiry conducted in fairness and consideration apply in his case. The Complainant was unfairly dismissed. Even if the Respondent mistakenly regarded the Complainant as merely a contractor, without any employment relationship, it seems an unusual way to terminate such a detailed and costly contract of a person who was part of the senior management team within the organisation and which was in place to varying degrees for over two years at that stage. Termination of the contract with immediate effect was provided for in the agreed contract-but as with any employment relationship, the grounds for immediate severance without any further financial  liability on the part of the Respondent are couched in terms which amount to serious or gross misconduct. No such reasons were put in writing to the Complainant, or based on his own evidence, at all.

Regarding redress, in circumstances where the Respondent is in liquidation, the only possible form of redress is compensation. In the procedures section of the decision reference is made to the requests at and following the hearing for evidence of losses directly related to the dismissal. What was submitted on 12 January by way of documentation did not comply with the request. There  are references to the nett earning difference in 2021, further references to the status of the contract arrangement and non-payments by the Respondent. The statements provided suggesting as they do a loss of income on join Altada make little sense in so far as they could be interpreted to mean the Complainant actually lost money on moving to the Respondent and therefore experienced no loss as a result of the termination of his employment.   The extent of the ‘evidence’ of losses directly attributable to the termination of employment was a statement about it taking 10 months to be restored to the full roster which existed in the GP practice prior to being reduced to accommodate the Altada contractual commitments. It is not my role to guess at figures for losses whereas it is the responsibility of the Complainant to provide evidence of his actual losses. In the circumstances the award of compensation is set at one months gross pay based on the monthly figure amounting to approximately €200k euro annually submitted on the original WRC complaint form There may well have been a greater loss incurred, but I am not prepared to impose that amount on the Respondent in the absence of adequate supporting evidence from the Complainant which he had ample opportunity to provide at and since the hearing of his complaint.

CA-52373-01 The complaint of unfair dismissal by the Complainant Eugene O Connor against the Respondent  Altada Technology Solutions Limited (In liquidation ) is upheld as being well founded. The Respondent is to pay the Complainant €16814 compensation by way of redress.

Dismissal/Employee Status/Location of Employment Contract