Complainant

Respondent

Parties

Bertrand  Lacour

Qbiqube (Ireland) Limited

Representatives

Des Ryan BL instructed by Oisin McAsey DFMG Solicitors

Loughlin Deegan, ByrneWallace

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-00038987-001

31/07/2020

The Complainant was employed as a Regional Sales Director by the Respondent. He stated that he was unfairly dismissed from his employment on 2 June 2020.

The Respondent disputed that the Complainant was an employee because he had not been engaged on a contract of service. It was also asserted that the Complainant was domiciled outside of the state and that the Act does not therefore apply to his alleged dismissal

The Complainant was employed as a Regional Sales Director by the Respondent, an Irish company carrying on business within Ireland. He was initially employed pursuant to an employment contract governed by English Law entered into on 5 November 2018. The first contract was terminated on 15 February 2019, with the termination date being 17 March 2019. That first contract was then replaced by a contract described as a “Non-Exclusive Business Representative Agreement”, entered into on 18 March 2019, which was presented as being a contract for services, governed by Irish law, made between Lynx 8 Limited, an English company controlled by the Complainant, and the Respondent. At all material times, it was communicated to the Complainant that this arrangement of using a Non-Exclusive Business Representative Agreement was to assist the Respondent in that it would not have to open a subsidiary in the UK or pay the employer pension contributions. This was presented to the Complainant as a fait accompli and he was offered no alternative. Fortunately, the Complainant had already previously set up a limited company registered in the UK, Lynx8 Limited, which was dormant, so he agreed to reactivate this in order to accommodate the Respondent.

The second contract was supposed to mirror the previous employment contract terms, providing continuity, i.e. it included the same 3 month notice period and 2 months garden leave, as well as the same territory, the role and responsibilities and commission plan. The day to day activity did not change, in that:

 • The Complaint continued to hold the same role and activity;

• The system for claiming expenses remained the same;

• The Complainant continued and was expected to use to use the Respondent’s ‘HR locker’ website to log holidays;

• The Complainant continued and was expected to use the company computer and equipment;

• Weekly reports and call updates proceeded as normal, with the Complainant expected to attend team events and conference calls, and with no right to substitution.

In April 2020, the Complainant received a contract amendment document, backdated to January 2020, that severed his Territory of North Africa, with a new commission plan for the year. The Complainant tried to seek an explanation and was told that he lacked “affinity” with the Territory. He asserted that this was a material example of the control and direction effected over the Complainant’s work.

On 2 June 2020, the Complainant received an e-mail purporting to inform him that his contract was terminated with immediate effect, due to Covid-19. That same day the Complainant’s email account was stopped, and he was denied access to his e-mail Inbox, Calendar, and HR record.

In support of his view that had had been engaged on a contract of service by the Respondent, the Complainant stated that as a Sales Representative, he worked closely with the Respondent’s HR and Sales Administrator, whose responsibilities include not only authorising all of the Complainant’s travel expenses, but also verifying the sales forecasts and allocating sales leads coming via the Internet. In addition, the Complainant stated that he was required to e-mail his weekly reports to the Administrator, which were aggregated and then sent to the CEO every Monday. The Administrator was the Complainant’s main point of contact with HQ in Dublin, working with both the CFO for the numbers and the CEO, when booking team meetings/events. Also based in Dublin was the Head of Presales, whose team participated at all of the external meetings the Complainant organised with potential customers and partners. In addition, the Complainant stated that he organised conference calls, and so every day he was liaising with either the Head of Presales or another Presales colleagues. Some of those colleagues worked from other locations, but the Head of Presales was based in Dublin. All meeting requests had to be authorised by him, and the Complainant had an Excel form to fill-in prior to the meeting in order to book his time / ask for his assistance. Depending on the priorities, the Head of Presales would then decide on whether to attend himself or delegate to another Presales colleagues. As a result, the Complainant frequently had to work with different Presales colleagues, helping prepare the meetings, explaining the background and objectives, and providing the necessary debrief and reporting.

The Respondent issued the Complainant with a purported Letter of Termination of the second contract dated 2nd June 2020, with a putative termination date of 4th September 2020. This was in flagrant breach of the Unfair Dismissals Acts both in providing no fair substantive reason for the dismissal and in denying the Complainant even the most basic level of procedural fairness.

The Complainant was initially employed by the Respondent from 6 November 2018 until the contract was terminated with effect from 17 March 2019. During his employment with the Respondent, the Complainant ordinarily worked outside the State. He normally worked in the United Kingdom. He was never required to work within the State during the 3.5 month duration of that contract.

 On 15 February 2019, the parties signed a termination agreement that provided (among other matters) as follows. "This letter is to confirm that Ubiqube (Ireland) Limited and Bertrand Lacour ("Parties") agree to terminate Employment Service Agreement signed by both parties on 05th of November 2018". The agreed termination date of the contract of employment was 17 March 2019.

Following a suggestion by the Complainant, the Respondent and Lynx 8 Limited, a company of which the Complainant was a Director, entered a commercial relationship pursuant to a Non-Exclusive Business Representative Agreement dated March 2019 under which Lynx 8 Limited Limited became the business representative of the Respondent for certain purposes. The Agreement stated: "This Agreement does not create and shall not be construed as creating an employer-employee relationship between Ubiqube and the Business Representative.

In June 2020, as a response to the economic crisis that arose as a result of Covid 19, the Respondent terminated its agreement with Lynx 8 Limited by giving 90 days' prior notice of termination as provided for in that Agreement.

The Complainant - not having been an employee of the Respondent at the time of the termination of the agreement - was not dismissed by the Respondent. The notice of termination of the Agreement was served by the Respondent on Lynx 8 Limited on 2 June 2020. In response to the notice of termination, solicitors for Lynx 8 Limited wrote to the Respondent in respect of the termination. The letter contained the following statements. "Our client instructs that they entered into a Contract for Services with Ubiqube (Ireland) Limited in or around May 2018. We therefore demand that our client be permitted to provide its services to Ubiqube (Ireland) Limited with immediate effect." This letter expressly provided that the Agreement was a contract for services between Lynx 8 Limited and the Respondent.

Preliminary Point:

I should highlight firstly that the Complainant must be engaged under a contract of employment to come within the jurisdiction of the Act. Specifically, for the purposes of the Act, a contract of employment is “a contract of service…, whether it is express or implied and (if it is express) whether it is oral or in writing”.

Although the Complainant, in his capacity as a Director of a limited company signed a “contract for services” with the Respondent, it was disputed that this reflected the true nature of the employment relationship and I must therefore consider if he was actually engaged under a “contract of service” when his employment was terminated on 2 June 2022.

In Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, the notion of a ‘test’ to determine employment status was rejected with Murray J concluding 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”. 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”, 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:

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

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?

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?

4.       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.

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.”

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.”

When considering the instant complaint, and in seeking to answer the questions set out above, I am satisfied when examining the first question that a binding contractual agreement existed which involved the exchange of remuneration for work.

When examining the second question, I note firstly that there was a dispute between the parties as to whose idea it was to engage the company, namely Lynx 8 Limited, on a contract for services basis. Specifically, the Respondent stated that Complainant floated the idea in March 2019 while the Complainant stated that it was suggested by the Respondent. On this point, I prefer the evidence of the Respondent because I found the evidence of the CFO to be more credible in this regard. Specifically, she stated that the plan was to transfer the Complainant’s employment to an English entity after he initially joined. However, when a decision was subsequently made not to establish this entity, they chose to terminate his employment in March 2019. Upon learning of his proposed termination, the CFO stated that the Complainant requested that the Respondent engage the company of which he was a director, Lynx 8 Limited, on a contract for services basis. This was disputed by the Complainant who stated that this idea originated with the Respondent. I noted however that the Complainant had previously used Lynx 8 Limited as a vehicle to provide services to clients, having established it in 2010 along with his wife, and had paid the relevant statutory and accountancy fees over the years even when the company was effectively dormant. I find therefore, on the balance of probabilities, that as an alternative to working under a contract of service and knowing that he was facing dismissal, the Complainant proactively sought to provide the services of Lynx 8 Limited to the Respondent, on a contract for services basis.

Given my view that it was the Complainant’s proposal to use the vehicle of Lynx 8 Limited to provide services to the Respondent, I find that he was not coerced into a situation where he was required to use the Company for this purpose, as an alternative to finding himself unemployed. Moreover, it is implausible to believe that he was unaware of the implications of such an arrangement, considering his long-standing role as a Director of Lynx 8 Limited since its establishment in 2010.

My view that the services were provided by a third party, and not by the Complainant, is further supported by the correspondence to the Respondent of 2 September 2020 from the solicitor’s firm acting for Lynx 8 Limited seeking three months’ notice pay further to the termination of the agreement in June 2020.

Considering all of the foregoing points and given that the agreement he signed in his capacity as Director of Lynx 8 Limited did not set out that he would provide his own services to the Respondent, stipulating instead that these would be provided by a third party, I must answer the second question set out by Murray J above in the negative.

Given that one of the three questions has been answered in the negative, it is not necessary to consider the matter any further because there can be no contract of service. As there was no contract of service between the parties when the agreement ended on 2 June 2020, I find that I do not have jurisdiction to hear this complaint. 

While I noted the Respondent’s submissions that the Act does not apply to the Complainant’s alleged dismissal because he was domiciled outside of the state, I have not taken these submissions into consideration. This is because I have determined that the Complainant was not engaged by the Respondent under a contract of service on 2 June 2020. Consequently, he is not covered by the Act on this basis alone and consideration of any further issues would be superfluous.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.