UDD2425

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039145 (CA-00050845-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 13 May 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 12 June 2024. The following is the Decision of the Court:

DECISION:

Background to the Appeal

This is an appeal by Mr Bill Kelly (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00039145, dated 5 April 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer found the Complainant “was not at any time an employee of the Respondent engaged on a contract of service by Templederry Renewable Energy Supply Ltd” and accordingly dismissed the complaint under the Act. The Complainant’s Notice of Appeal was received in the Court on 13 May 2023. The Court heard the appeal in Cork on 12 June 2024. The Complainant gave sworn evidence. No witnesses were called by the Respondent.

Preliminary Issue

It is submitted on behalf of the Respondent that the Complainant’s work with it was, at all times, as a self-employed contractor pursuant to a contract for services. It follows that the burden of establishing that he has employed on a contract of service with the Respondent (and, therefore, has standing to pursue the within claim under the Act) rests on the Complainant.

The Complainant’s Evidence

The Complainant told the Court that he had a number of conversations with Mr John Fogarty, a director of the Respondent company, in or around September 2019, which gave rise to an offer of employment (on a contract of service) which he accepted on 12 November 2019. The Complainant followed up in writing with Mr Fogarty, after a meeting that took place on the that date, to ask him to let him (the Complainant) know if he needed any additional information from him in order to complete whatever formalities were required. The Complainant’s evidence was that Mr Fogarty advised him that the quickest way to get him ‘on board’ was by means of a three-month trial period during which the Complainant would invoice ‘the Wind Farm company’ for his services for a three-day week. It was the Complainant’s understanding, he said, that if the trial was successful, he would commence working on a five-day week basis. The Complainant told the Court that he took Mr Fogarty at his word, gave everything to the job, but no written contract issued to him in that trial period. According to the Complainant, he in fact committed to working five days per week, although he was paid for only three days at a rate of €506.00 gross per week. The Complainant exhibited a copy invoice dated 1 May 2020 ‘for professional services’ in the amount of €4,554.00 for the period 2 March to 1 May 2020 i.e. nine weeks at €506.00 per week.

The Complainant told the Court that there were two elements to his job – sales and ‘a continuation of the work he had previously done in InterReg’. He said that following the outbreak of Covid in March 2020, the sales element of the job initially ground to a halt and he felt that he would be let go. For that reason, he said, he didn’t want to ‘rock the boat’ by raising issues about his contract. He needed an income to service his mortgage and pay his bills. By April 2020, he said, he had access to Zoom and was able to engage with community groups around the country to continue with his sales work.

The evidence then moved to the period of December 2020/ January 2021. The Complainant said that he approached Mr Noel Carey, the company secretary, to tell him that he was unhappy that his contractual situation still had not been ‘regularised’ with Mr Fogarty. According to the Complainant, Mr Carey told him the matter was between Mr Fogarty and the Complainant. He continued with the invoicing arrangement, he said, throughout 2021 during which Mr Fogarty it appears was on sick leave for an extended period and the Complainant found himself reporting to Mr Carey. Mr Carey, he told the Court, eventually undertook to speak with Mr Fogarty on the Complainant’s behalf sometime in August 2021. Mr Carey, he said, asked him to put something in writing for him in advance of this proposed meeting. The Complainant said he did so and submitted a discussion document under email dated 19 September 2021. He exhibited the email and attached discussion document to the Court. In that document he suggested ‘payment terms & conditions for the two work streams’. This extends over two pages. The first element is as follows:

“Payment preferably via monthly invoice from my limited company (fully tax compliant etc).

a.    I am open to consider payment via the PAYE system if CP has a strong preference to go the PAYE route, e.g. if there are employment covenants with EI for example.”

The Complainant confirmed that he didn’t then, or doesn’t now, have a limited company. He told the Court he received no response to the proposal he submitted on 19 September 2021 but ultimately agreed with Mr Carey that his situation would be ‘regularised’ by the end of October 2021. The next event of note that occurred, according to the Complainant, is that he received an unsolicited bonus payment of €8,000.00 in October 2021 in respect of which he was told, he said, by Mr Carey to invoice the company in the usual way but adding €5,500.00 and €2,500.00 respectively to his monthly invoices. At this point, the Complainant said that he had come to the conclusion that ‘these people’ were never going to ‘regularise’ his situation. In or around this time, it also came to his attention that all work on mutualising the company had ceased. He, therefore, he said, wrote an email to Mr Carey and Mr Fogarty setting a deadline of 31 December 2021 to have his situation ‘regularised’. The Complainant said that he did not receive a written response but engaged with Mr Carey who told him that his September proposal was too expensive. The Complainant said he invited Mr Carey to make a counter-offer but none was forthcoming. At this point, he told the Court, he realised he had been ‘strung out’ over the past two years.

The Complainant told the Court that he had taken about two-and-a-half weeks’ holidays while working for the Respondent for which he had given advance notice and had invoiced the Respondent in the normal way. He also said that he had signed contracts on behalf of the Respondent and this demonstrated he was ‘an integral part of the Respondent’s organisation’.

Under cross-examination, it was put to the Complainant that the Solicitor who had represented him at the hearing before the Adjudication Office had, in fact, conceded that his status at all material times was one of independent contractor. The Complainant accepted that that had been the case but said the Solicitor had been wrong in doing so. It was also put to the Complainant that he had made an application to the SCOPE section of the Department of Social Protection which had not been decided in his favour and that he hadn’t appealed the decision of the Deciding Officer.

Counsel next put it to the Complainant that in his proposal of 19 September 2021 he had expressed a clear preference to be engaged on a contract for services basis and had specified that his required daily rate would be €500.00 per day (ex-VAT). Counsel exhibited a copy of a letter that the Complainant sent to Mr Carey on 27 December 2021 and put it to him that it was indicative that the Complainant had decided to part company with the Respondent because the terms he had proposed in September 2021 had not been accepted by the Respondent.

Finally, Counsel submitted that the Complainant did not have regular hours or express start and finish times when engaged by the Respondent, did not work under supervision and was free to engage somebody else to work for him.

Discussion and Decision

The Court finds that the Complainant’s evidence does not establish that he was in reality engaged pursuant to a contract of service with the Respondent. Even if it had been the case that he had a genuine expectation that his initial discussion with Mr Fogarty had led to an offer of an engagement on that basis, he nevertheless readily agreed to a most unusual ‘trial period’ during which he was content to be paid on an invoice basis without the deduction of tax, PRSI or USC. He allowed this arrangement to continue for over two years. When he did formulate a proposal in writing to ‘regularise’ his situation, he clearly expressed his preference to continue on a contract for services basis, albeit by invoicing through a limited company which he (presumably) intended to incorporate.

The Court, therefore, finds that the appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
9th July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nerney, Court Secretary.