Complainant

Respondent

Parties

Brian  Hackett

Institute Of Public Administration Clg

Representatives

Setanta Landers, Setanta Solicitors

Ruth Mylotte, B.L. instructed by Regan O'Driscoll, CC Solicitors

Act

Complaint/Dispute 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-00061237-001

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00061237-002

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00061237-003

26/01/2024

The Complainant is a part time lecturer with the Respondent.  He was retained on a self-employed basis in 1996 and believes that he was made a full-time permanent employee on 01/09/2014.  He was never provided with a copy of his terms and conditions and in July 2023 he discovered that he was not enrolled in the pension scheme he raised his concerns.  He was then issued with a proposed contract which he believes was prejudicial to him, and the Complainant believes this was penalisation.  The Respondent contends that the Complainant is not or has never been its employee and he has at all times since 1996 been engaged as an independent contractor.

The parties agree that the Complainant’s status should be dealt with as a preliminary matter.

Evidence of Complainant:

The Complainant gave evidence on affirmation and stated that he commenced lecturing for the Respondent in 1996.  In 2001 he took up additional duties and worked on different projects.  In 1996 he worked for a three-hour period and also worked on Saturdays and Sundays.  He was paid on a monthly basis by cheque.  This changed in 2008 when he was paid by credit transfer.  The Complainant outlined that he filled out a claim form and submitted his hours in order to receive payment.  The Complainant gave evidence that he was told in 2014 that he would get a contract and when this arrived the documentation was in another person’s name, so he returned it unread to the Respondent.  The Complainant outlined that he never received a contract.

The Complainant gave evidence that the attended a meeting on 08/06/2023 and this meeting was to provide information in relation to the reorganisation of work.  The Complainant received a draft contract on 04/07/2023 and as he was concerned about some of the contents of this, he wrote to Mr Michael Mulreany, Head of Education.  The Complainant outlined a particular concern that this contract  “presents me with a two-year fixed term contract which is inconsistent with my confirmed permanent employee status”.    The Complainant’s evidence was that his status as an employee was confirmed when his payments were processed through the Respondent’s payroll system.  The Complainant also highlighted a concern about the indemnity clause in the contract.  The Complainant stated that he saw this contract as a mechanism to move him away from a permanent role. 

The Complainant did not get any response to this letter apart from a holding letter.  He had a meeting in February 2024, and this was to discuss his WRC case.  The Complainant confirmed that he never received a contract in 2015 and he did not think that as a permanent employee he would have to provide his own indemnity insurance.  The Complainant did not sign the draft contract as he considered that he was a permanent employee.

Cross examination – Complainant:

The Complainant was cross examined by Ms Ruth Mylotte, B.L. on behalf of the Respondent.  The Complainant confirmed his understanding that when he started in 1996, he was not full time.  He also confirmed that he was never provided with a copy of the terms and conditions of employment. It was put to the Complainant that he was issued with a contract for service, but this was in the wrong name and confirmed that was the case.  The Complainant also confirmed that he requested a copy of the document in his own name but did not receive this.

The Complainant was asked about a memo dated 29/07/2014 with  the subject matter “Establishment of an Associate Panel and the Implementation of PAYE and PRSI” and he stated that he never received this and that the first time he saw it was when it was in the Respondent’s submission.

The Complainant was asked why he asked for a contract, and he stated that he was put on the payroll and had been there for 27 years.  The Revenue record stated that he was an employee, and he wanted a contract to reflect his permanent status.  The Complainant was asked why he did not request a contract in 2014/2015 and the stated that “there was so much going on  and I did not request anything”. 

The Complainant was asked if he was aware that he was paid more than an employee and he stated that he never calculated the pay of other employees and they never spoke about pay.  It was put to the Complainant that he never saw a pension deduction and he stated that he thought it was a non-contributory pension. The Complainant was asked about sick leave and annual leave arrangements and he stated that as he was not full time, he did not know about these.

It was put to the Complainant that a contract for services was issued in late 2014 and the Complainant stated that he did not see this and never signed a contract.  It was put to the Complainant that his payslips refer to “Fees” and there is no pension contribution recorded.  He confirmed that was correct. 

The Complainant was asked how he was informed in 2014 that he was moving to the payroll system, and he could not recall.  It was put to the Complainant that this was the basis on which he was claiming to be an employee and he stated that he did not receive any formal notification.  He stated that he put his faith in the Respondent to do the right thing and he believed his pension contributions were non-contributory. 

It was put to the Complainant that he did not assert any employment rights during his time, and he stated that he just got on with things.  The Complainant was asked to review a copy of the Respondent’s record of the payment he received, and he stated that he had no issue with the amounts paid.  The payments do not take other work into consideration such as committee work and dealing with students.  

It was put to the Complainant that he applied for a permanent post with the Respondent in 2019 and he confirmed that he did.  The Complainant agreed that he turned this down as it had a two-year probation period, and the salary did not recognise his previous service.  The Complainant also stated that the post required the person to study accountancy and do research and he had never done either of those.  The Complainant also stated that he asked who would judge if he was successful and did not get an answer.  There was no discussion about the offer.

It was put to the Complainant that his written submission stated that he was told in July 2023 that he was not in the pension scheme, and he agreed.   It was then put to the Complainant that he also stated that he contacted the Respondent’s pension manager in August 2022 and was told that he was not a pensionable employee.  The Complainant stated: “I didn’t believe it”. 

It was put to the Complainant that he was aware in 2022 that he was not in the pension scheme, and this was confirmed by the pension’s manager.  He agreed that was the case.  It was put to the Complainant that his e mail of 26/08/2022 could not then link the fact that he was not in the pension scheme to a protected disclosure.  It was put to the Complainant that he had made an error in relation to the dates.  He was informed that he was not in the pension scheme on 26/08/2022  but his submission gives the date as August 2023, and he raised his protected disclosure in July 2023.  It was put to the Complainant that he was informed about the pension scheme one year prior to his complaint which he regarded as a protected disclosure.

The Complainant was asked about the meeting in March 2024 in relation to the transformation which was taking place.  It was put to the Complainant that he was invited to attend the same as all associate lecturers.  The Complainant stated that what was shown at the meeting was how extra work would be done and there was no mention of contracts at that meeting.

It was put to the Complainant that the contract that was issued to him was as a result of the ongoing processes in the Respondent and was not due to his queries about his pension.  He agreed that was the case. 

The Complainant was asked what his protected disclosure was, and he stated that it was that he was not placed in the pension scheme.  He was then asked if he agreed that he was aware in July 2022 that he was not in the pension scheme and he agreed he was.  The Complainant was asked if the issues he raised were in relation to his contract of employment and he confirmed that they were.

It was put to the Complainant that in order to be eligible for membership of the pension scheme there was a minimum FTE (Full time equivalent) that a person had to work and as he worked 0.0846, he did not meet the eligibility criteria. The Complainant did not know these details.

The Complainant was asked a series of questions in relation to his complaint:

a)      It is true that you were never performance managed or had an annual review.  The Complainant agreed.

b)     Did he ever request annual leave.  The Complainant confirmed that he did not.

c)      Did he have an e-mail address provided by the Respondent.  The Complainant confirmed that he did not.

d)     Did he attend faculty meetings.  The Complainant confirmed that he did not.

e)     Did he attend conferring ceremonies.  The Complainant confirmed that he did not attend.

f)       Did he attend staff events.  The Complainant confirmed that he did not attend.

g)      Did he liaise with external examiners.  The Complainant confirmed that he did not.

h)     Was he involved in external marketing on behalf of the Respondent.  The Complainant confirmed that he was not involved.

i)       Did the Complainant exclusively provide services to the Respondent.  The Complainant confirmed that he did not.

j)       Was he paid for additional work.  The Complainant confirmed that he was.

k)      Are any of your issues related to your contractual terms.  The Complainant confirmed that they were.

The Complainant was asked how he felt he was penalised, and he stated that by giving him a two-year contract and not being in the pension scheme were penalisation.  It was put to the Complainant that he was told in 2022 that he was not a pensionable employee and the Complainant was asked how was he penalised in 2023.  The Complainant stated that he knew it was happening.  It was put to the Complainant that the issues in relation to pension were not related to a protected disclosure and in that context, he did not make a protected disclosure.  The Complainant stated that he felt that he had made a protected disclosure.

Re-direction:

Under re-direction the Complainant was asked who sets his hours of work and he confirmed that the Respondent does.  He also confirmed that his IT platform, Moodle, is provided by the Respondent.    The Complainant was asked what would happen if he was not available for a lecture and he confirmed that the Respondent would organise things.  He also confirmed that the Respondent is responsible for the timetable.  The Respondent communicated with students and the Respondent puts his slides up for his lectures.  All his printing requirements are done by the Respondent.

Closing submission:

Mr Landers made a closing submission on behalf of the Complainant.  Mr Landers stated that the terms of employment were known to the Complainant but never furnished.  The Complainant would concede everything prior to 2014.  However, the questions are if there a requirement for personal services and the answer is yes.  The Complainant did not set his own hours and the Respondent does all the printing and administrative functions to enable the Complainant to deliver his lectures.  The Complainant has been treated as an employee for the past nine years.  The Complainant meets the criteria.  Mr Landers referred to the Reynolds case from 1994 and noted that employers don’t like employee contracts.  The employer is highly motivated to deny a contract of employment to staff.

In relation to the protected disclosure, it is acknowledged that there was a typographical error in the submission.  The issue was raised by the Complainant in 2022 and he described himself as an employee and the Respondent’s response on 23/08/2022 was that he was not a pensionable employee.  The Complainant understood that he was employed.

In July 2023 the request does not have to be a nexus and does not have to be the next day.  It is a breach of the law and the contract provided was a designed to limit the Complainant’s rights.  This is what the Protected Disclosures Act was designed to do – highlight these kinds of matters.

The contracts presented are less favourable than what the complaint had.  The Complainant’s complaint was filed on 26/01/2024 and the Respondent’s position was communicated to the complaint on 20/07/2023.  The penalisation continues and so it is not out of time.

It was submitted on behalf of the Complainant that it is regretful that the Complainant had to take this case to the WRC.  It could have been resolved and the Complainant could have, should have and ought to have been issued with a contract.   The Respondent’s attempts to change the Complainant’s revised contract is a gross categorisation of his status and the plan was designed to phase out such arrangements that the Complainant had over a two-year period was deliberate and wrong.

The Respondent is legally mandated to carry out an investigation under the Protected Disclosures Act but failed do so.  As there is ongoing penalisation the WRC should take a dim view of this. It is clear that the Complainant is on the payroll and has PRSI returned and so he should be treated as a part time employee.

It was submitted on behalf of the Respondent that in order to maintain his claims under the provisions of the Terms of Employment (Information) Act, 1994 and the Protected Disclosures Act, 2014, the Complainant must be an employee of the Respondent within the meaning of these two Acts.   The onus of proof is on the Complainant to establish that he is an employee of the Respondent.  The Respondent contends that the Complainant is not and never has been its employee.

Evidence of Ms Noreen Fahy:

Ms Noreen Fahy gave evidence on affirmation on behalf of the Respondent.  Ms Fahy confirmed that she is a Deputy Director with the Respondent and has worked for them for the past 20 years.  Ms Fahy outlined that she does have an understanding of payroll.  Ms Fahy outlined that there was an audit carried out by the Comptroller and Auditor General (C&AG) in 2013 and because of this there was a recommendation that Associate Lecturers should not be paid through the Suppliers Ledger.  The C&AG suggested that the Respondent contact Revenue and as result of this any Associate Lecturer who was a sole trader was paid through the payroll process.   Any Associate Lecturer who had a company profile and who were tax compliant continued to be paid through the Suppliers Ledger.

Ms Fahy confirmed that the Complainant was an Associate Lecturer and because of the 2013 audit he was then paid through the payroll process from 2014.  Ms Fahy stated that any changes to pay and taxation would be communicated by e-mail to those affected.  Following these new contracts were issued to Associate Lecturers

There were new contracts issued to Associate Lecturers in 2023 to regularise the relationship.  Ms Fahy explained that there were issued arising from the Board approval of a new strategy which led to a transformation plan.   Ms Fahy confirmed that the contracts were not issued because of anything done by the Complainant. Ms Fahy stated that the Associate Lecturers were a stakeholder group.  Ms Fahy also confirmed that there was no connection between the Complainant raising a query in relation to a pension entitlement and the issuing of these contracts.  Ms Fahy also confirmed that there was no pressure placed on the Complainant to sign the contract.

In response to some questions from the Adjudication Officer Ms Fahy confirmed that the number of suppliers was between 60-70 and the number of Associate Lecturers was approximately 75.  The number of permanent staff was between 85-90.  Ms Fahy also confirmed that there were approximately 20% of Associate Lecturers who were non-compliant as they did not return the signed contracts.

Cross examination – Ms Noreen Fahy:

Ms Fahy was cross examined by Mr Setanta Landers on behalf of the Complainant.  She was asked to outline the reasons for the C&AG audit. Ms Fahy explained that this was done annually, and it can be a long process.  Ms Fahy was asked if the C&AG had concerns and she stated that they issued what is referred to as an “unqualified opinion”.  Ms Fahy was asked if it was more common for the Respondent to employ individuals on a non-permanent basis and she stated that it was not a strategy to do so.

Ms Fahy was asked if the contracts were issued as part of the strategic initiative, and she confirmed that they were.  She was asked if these were fit for purpose.  Ms Fahy stated that the contracts were appropriate for the nature of the service they provide.  It was put to Ms Fahy that if the Complainant was a full-time employee, he would be paid lower so it would make sense to make him full time.  Ms Fahy stated that the Respondent did not have control over their employment numbers, and they had to work within their approved allocation.  Ms Fahy was asked why individuals who are not classed as employees are paid more than regular employees.  Ms Fahy explained that this was an historical arrangement, and those individuals have no other benefit.  It was put to Ms Fahy that this arrangement was in fact more expensive, and she stated that this arrangement suited the Respondent.

It was put to Ms Fahy that if the Complainant was a contractor, it was unusual that they were paid through the payroll process paid tax, PRSI, and USC.   Ms Fahy stated that the Complainant was not an employee, and it was never highlighted by any of the regulators that these contractors were employees.

Evidence of Ms Gwen Turner:

Ms Gwen Turner gave evidence on affirmation on behalf of the Respondent.  She confirmed that she is the Head of Human Resources with the Respondent, and she took up this post in November 2023.

Ms Turner explained her involvement with the Complainant and stated that she met with the Complainant on 15/02/2024 to explain the Respondent’s position.  Ms Turner stated that when she received notice of the Complainant’s WRC referral and his solicitors’ letters, she wanted to see what was happening and if they could resolve matters. Ms Turner also stated that she “could not follow the thread of the protected disclosure”.  Ms Turner stated that she went through the various items with the Complainant, and he stated that he would have to talk to his solicitor.  Ms Turner confirmed that she compiled the note of the meeting which was opened at the hearing.

Ms Turner also gave evidence that she had calculated the Complainant’s FTE equivalent as being 0.0846. Ms Turner outlined that the Respondent had engaged with the Department of Education and Higher Education, and it was confirmed that the Complainant’s payments were non-pensionable.   Ms Turner also confirmed that salaried staff do not get extra payments for correcting exams and assignments.  Ms Turner also confirmed that salary scales which are paid by the Respondent are overseen by the Department of Public Expenditure and the Respondent cannot decide to deviate from these scales.

Ms Turner gave evidence that she spoke with the Complainant about the 2014 contract, and he explained that he received a document in someone else’s name, and he returned it to the Respondent.  Ms Turner also gave evidence that she informed the Complainant that there was no contract on file for him.

Ms Turner also gave evidence that she had experience from a previous role of the revenue issue and that casual staff were not compliant.  She stated that the Respondent engages Associate Lecturers on a contract for service basis.

Ms Turner stated that when the Complainant wrote to Mr Mulreany, he stated that he felt that he was issued with the contract as a result of having raised the pension issue.  Ms Turner stated that she was not sure how something that predated his letter to Mr Mulreany could be a protected disclosure.

Ms Turner was asked if the Respondent replied to the solicitors’ letters which were sent to the Respondent, and she replied that they did not as they were in process and a date for a WRC hearing was arranged.

Ms Turner also confirmed that she did not place any pressure on the Complainant to sign the contract.  Ms Turner also explained that the Complainant did not receive a response to his letter due to internal staff changes and this was not a deliberate action.

Ms Turner was asked if the Complainant had any engagement with the Respondent’s performance assessment and she confirmed that he did not.

Cross examination – Ms Gwen Turner:

Ms Turner was asked what the purpose of the document she created which showed the Complainant’s earnings and a breakdown of his payments was.  She stated that this shows the earnings the Complainant had and also shows his FTE.  She prepared this as it is often a question that is posed at a WRC hearing.  Ms Turner was asked why she done a breakdown in terms of FTE and she explained that this is a HR means of explaining someone’ whole-time equivalent.

Ms Turner was asked why the Complainant was not offered a permanent contract if he was doing the amount of work outlined in the document.  Ms Turner explained that when the Respondent wants to fill a position, they have to advertise it through a competition.  It was put to Ms Turner that when she met the Complainant in February 2024, she could have offered him a permanent contract.  Ms Turner stated that it was not in her gift to do so.

Ms Turner was asked if she included a quantum for a public service pension in her calculations in the document and she stated that she did not as she was not asked to do so.

It was put to Ms Turner that in terms of the Complainant’s employment status he is deemed to be an employee by Revenue and the Department of Social Protection also says that he is an employee.  Ms Turner stated that the Respondent has no input into how Revenue classifies a person.

Ms Turner was asked where she got the contract template which was opened at the hearing, and she said that this was available from the Respondent.

It was put to Ms Turner that the two contracts which were sent to the Complainant were totally different in relation to the wording of the indemnity clause.  Ms Turner confirmed that these did not raise any alarm bells as she started in November 2023 and became aware of the Complainant’s issues in January 2024.  In relation to the insurance requirement Ms Turner stated that the Respondent has insurance, and their insurer needs to know that any consultant working for them has their own insurance.

Evidence of Mr Michael Mulreany:

Mr Michael Mulreany gave evidence on oath on behalf of the Respondent.  He confirmed that he is the Assistant Director General and also Head of School with the Respondent.  Mr Mulreany confirmed that he knows the Complainant since he started lecturing for the Respondent in 1996.

Mr Mulreany gave evidence in relation to how the Complainant is engaged by the Respondent.  In essence this revolves around the academic cycle and Mr Mulreany provided an overview of this.  The Respondent writes to all Associate Lecturers asking for their requirements for September.  This is done to see if people will continue to provide lectures. Following this a general timetable and schedule is issued, and this is broadly similar in each academic year.  At the beginning of a new academic year the Respondent reminds Associate Lecturers about their classes.  Mr Mulreany outlined that the Complainant could on occasions be asked to do additional work such as marking assignments.

Mr Mulreany gave evidence in relation to the distinction between employees and contractors such as the Complainant.  Employees come under a faculty framework and have to attend faculty meetings every month.  They are required to attain certain standards and their work is subject to quality review.  There are also NUI requirements which apply to employees.  Employees would be working on the full cycle of the year.  These would not apply to Associate Lecturers in the same way.

Mr Mulreany confirmed that he has no role in timetabling, but he does have a role in creating new programmes.  This is internal work and he acknowledged that there could be occasions when Associate Lecturers would be asked to assist.

Mr Mulreany also gave evidence in relation to the Respondent’s performance management process. This is done internally, and a review is undertaken on an annual basis. Feedback from both Associate and internal staff is reviewed.

Mr Mulreany also explained that the Respondent uses its own e-mail for faculty meetings and staff events.  The Complainant has assisted with a review of a B.A. programme, and he was invited to do so.  Mr Mulreany confirmed that the Complainant attends the Education Committee meeting but does not attend staff events or has no involvement in promotional activities.

Mr Mulreany also gave evidence that there are other differences between employees and Associate Lecturers.    Employees have budgetary targets and constraints and have to meet and apply standards across all areas of their work.  Employees are also involved in policy related work and have a significant role in the annual examination cycle through their involvement in things like internal boards.

Cross examination - Mr Michael Mulreany:

Mr Mulreany was cross examined by Mr Landers on behalf of the Complainant.   Mr Mulreany was asked if the Respondent could call people if they were available.  Mr Mulreany explained that under NUI requirements they have to provide them with staff details.

Closing submission:

Ms Mylotte made a closing submission on behalf of the Respondent.  She outlined that the difference between employees made by the Respondent is not a gross characterisation.  The Complainant is paid substantial sums as a contractor and these payments take account of the fact that he is not an employee.

The Complainant was offered a permanent post and he rejected this.  The discussions with the C&AG resulted in the Complainant and other Associate Lecturers being put on the payroll and continue to work on contracts for service.  The Complainant is not an employee.

Preliminary Matter – Complainant’s Status:

In considering the facts of this case and the case law it is first necessary to look at the relevant sections under the Act which this complaint was initiated by the Complainant:-

Section 3 of the Terms of Employment (Information) Act 1994 provides:

“3.—(1) 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, that is to say—” with a list of terms which must be included in the contract.

A “contract of employment”, “employee” and “employer” are defined in Section 1 of the Act:-

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”

“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; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

“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”

Where there is a dispute between the parties as to whether an employment relationship exists in the first instance, it is necessary to first decide on that issue where such entitlements are contingent on their being employees employed under a contract of service.

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

I must now consider if the Complainant in this case was engaged under a ‘contract of service’. It was common case that the Complainant never signed a ‘contract for services’ or a ‘contract of services’; however, it is not always the case that where a written contracts exists that reflect the true nature of the employment relationship. The distinction between contracts ‘of’ service and contracts ‘for’ services is not always obvious.  As noted by the Labour Court in Associated Newspapers Ireland Limited t/a DMG Media Ireland v. Joseph Dunne UDD2260, the determination of an individual’s employment status in the context of ascertaining whether that individual has standing to pursue claims under employment legislation is a mixed question of fact and law.

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

More recently, in a tax related case, Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, Murray J for the Supreme Court rejected the notion of a ‘test’ to determine employment status and the over reliance placed on ‘mutuality of obligation’ in determining employment status. Murray J concluded that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation” [at: 214].

He noted that when deciding employment over a period, the overarching or umbrella contract may be important (this matter was not considered further in the case). Murray J outlined that the framework in Ready Mixed Concrete (South East) Ltd. v. Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v. Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remain a “reliable structure for the identification of a contract of employment” [at: 253], concluding that the question of whether a contract is one ‘of’ service or ‘for’ services should be resolved by reference to the following five questions [at: 253]:

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

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?

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?

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.

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

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

The Complainant has been engaged by the Respondent since 1996 and the Complainant believes that he was made a permanent full-time employee on 01/09/2014.  He submits that the evidence of this is that the method of payment changed.  He is now paid through the Respondent’s payroll.  In that context there is an exchange of remuneration for the work he provides.  The Complainant also provided his own services.  It is not absolutely clear what control is exercised over the Complainant,  but it is clear that he works for the Respondent in line with their academic cycle.

Having considered those three questions these must be considered in the light of the working arrangements between the Complainant and the Respondent.  Although the Complainant believed he was a permanent employee he applied for a permanent role in 2019 and subsequently did not take up this role.  There is an intrinsic inconsistency in this assumption.  There are other anomalies in the Complainant’s evidence.  He gave evidence that he never received any documentation in relation to the 2014 method of payment.  He did not provide any evidence that he raised any queries in relation to this.  The complainant believes that he was part of a non-contributory pension scheme but did not provide any rationale to adequately explain this.  It is remarkable that someone who considers themselves to be an employee never looked for or raised any query in relation to annual leave or payment for annual leave over a period of ten years.  These along with the Complainant’s overall working arrangements are not consistent with a contract of employment.

The Respondent submits that this change occurred on foot of a recommendation arising from an audit by the 0 (C&AG) and the Complainant’s engagement was at all times as an independent contractor. 

The Respondent has provided compelling evidence that the only contract ever offered to the Complainant was a contract for service.  The Respondent accepts that there was a lack of follow up in relation to the mix up which occurred in 2014.  The Respondent also provided the hearing with details of the three categories used for payment purposes.  The first is permanent employees who are paid through the payroll process, the second is where there are individual contractors who provide details of their hours worked and are also paid through the payroll process.  There is a third category which consists of a panel of suppliers who have a company and the payments in this case are made through the procurement processes.  None of these arrangements  are unusual and it is clear that the Complainant was at all times, since 2014,  paid through the second category, individual contractors, and the Respondent gave evidence that they have approximately 75 such individuals.  There was considerable evidence that the Complainant is not part of the faculty framework which is an integral part of those who are employees of the Respondent.

There is no doubt that the Complainant is a diligent and dedicated lecturer.

The evidence presented was clear in this complaint. I find that the Complainant is not an employee, nor is he working under a contract of employment as defined in Section 1 of the 1994 Act. Consequently, I find that the Complainant is not entitled to a contract of employment, and his complaint is not well founded.

CA-00061237-001: I have decided that the Complainant is not an employee, nor is he working under a contract of employment as defined in Section 1 of the 1994 Act. Consequently, I find that the Complainant is not entitled to a contract of employment, and his complaint is not well founded.

CA-00061237-002: In view of the finding at CA-00061237-001 the Complainant is not an employee and so does not have the standing to bring this complaint.

CA-00061237-003: The Complainant’s representative confirmed that this complaint is withdrawn.

Contract for service.  Employment status.