FTD242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00032975 (CA-00043627-002)

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision to the Labour Court on the 13th of April 2022. Case management was held on 19 July 2022. Hearings were held on 18th October 2023, 19th October 2023, as well as 15th April 2024.

DECISION:

This is an appeal of decision ADJ-00032975 CA 00043627002 of an Adjudication Officer under the Protection of Employees (Fixed-Term Work) Act 2003-2015 (the Act) by the Complainant Mr Reilly in a complaint against the Minister for Trade and Employment the Respondent. The Adjudication Officer did not uphold his complaint. The complaints were submitted to the WRC on 26th February 2019. The limitation period for the purpose of the Act is 27th August 2018 to 26th February 2019.  The appeals were submitted to the Labour Court on 13th April 2022.

Hearings were held on 19th July 2022 (case management) and on 18 and 19th October 2023, and 15th April 2024. The cases had been scheduled for hearing in November 2022. However, the Complainants submissions were not received in advance of the hearing dates, and the hearings had to be postponed pending the receipt of the submissions.

Background

The Complainant was appointed as a Rights Commissioner on the 1st November 2007 and as an Adjudication Officer on 1st October 2015. The Complainant held dual warrants for a period of time.

The last renewal of his Rights Commissioner warrant was 26th September 2017 which expired on 30th September 2018 and his Adjudication Officer’s warrant was withdrawn by the Minister on the 25th October 2018 following his resignation.  It was not in dispute between the parties that the Complainant’s last day working was 10th May 2018.

This complaint is linked to the following cases FTC/22/9, FTC/22/10, PTW/22/1, WTC/22/93 WTC/22/94 and WTC/22/95.

The parties raised the following preliminary issues which are relevant to all the Complainants cases

• 1) Does the Complainant fall within the definition of employee as set out in the Directive and the Act.
• 2) Is there a fundamental question of EU law in respect of the fact that the Minister, an agent of the state, is submitting that as the Complainant is an Office Holder the Act does not apply to him.
• 3) When did the Complainants role as a Rights Commissioner and as an Adjudication Officer come to an end

The Court agreed with the parties that it would hear the case in full then decide the preliminary and substantive issues as appropriate.

 Summary of Complainant’s submission and evidence

  Ms Kimber SC on behalf of the Complainant submitted that the complaint was in respect of a breach of section 6(1) of the Act, in that he received less favourable treatment in respect of pay or remuneration, pension, sick leave, annual leave, Public Holidays, enforced short time working, travel and subsistence payments, and fall days payment.  Ms Kimber SC identified the relevant comparators for the purpose of this Act as Principal Officer, Deputy Chief Social Welfare Appeals Officer, Registrar of the Labour Court and Registrar of the WRC.

 In her overview of the case Ms Kimber SC submitted that there were three areas for the Court to consider.

1) whether the Complainant is a worker within the meaning of directive and or Act.

2) If he is covered, has he been treated less favourably than a relevant comparator, noting that the issues of entitlement to a contract of indefinite duration is not reliant on having a comparator

3) are the Respondents in breach of other elements of the Act?

Ms Kimber SC submitted that the test for ‘a worker’ under the Act must be interpreted in line with direct evidence and documents that apply to the relationship between the Minister and Adjudication Officers, and Rights Commissioners. The Court must hear evidence of how the relationship worked in practise. Ms Kimber SC stated that the EU concepts of worker cannot be defined in a manner that arbitrarily excludes a cohort of workers such as the Complainant.  She directed the Court’s attention to cases such as Yolanda Del Cerro Alonson v Osakidetza Servicio Vasco de Salud Case C-307/05, Power and HSE [2019] IEHC 462, D P O’ Brien v Ministry of Justice Case C-393/10, Gillam v Ministry of Justice 2019 1 WLR 5905, and Percival Price and others v Department of Economic Development and others [2000] NI 141.

Ms Kimber SC submitted that the test under EU case law is “person is in a relationship which is not substantially different from an employment relationship under national law are covered” and the person has to render personal service for a fixed remuneration. If member states were allowed to remove at will certain categories of workers, it would jeopardise what the EU is seeking to achieve by means of the Directive. Putting it in context in the past 40–50-year there has been a vast body of workers right legislation.  This recognises the dominance of employers and that persons providing services are in a personal relationship in which parties can dictate own terms, therefore the little person has to be protected.

 In the case to hand the Respondent is a large dominant body in the particular area of Adjudication. They chose to place the Adjudication Officers at an arm’s length relationship where they have no obligation to provide them with any rights and its cheaper because if they are employed, they have rights.  Despite entering an arm’s length arrangement, the Respondent still sought to exercise considerable control over the way people could work and what they could earn.  The Complainant was not employed on an ad hoc basis.

The Complainant will give evidence that he did not have the power to say I will do something today but not tomorrow, or I will charge you this or that. He had to engage with policies and practises of the LRC which then became the WRC. The Complainant had to do work in line with the policies and objectives of the Respondent, and his remuneration was a predetermined rate that went up and down in line with civil service rates of pay.  The Complainant could not negotiate his own rate of pay.  This raises a question as to whether the relationship was legitimate and conforming with EU law particularly in circumstances where the state is involved.

The Complainant’s comparators were identified based on facts such as, work of equal value, like work, and their link to Principal Officer pay scale, although not all of his complaints require comparators.

In respect of the limitation period set out in the Act, the Complainants warrants continued during that period, with the Rights Commissioner warrant expiring end of September 2018, and the Adjudication Officer warrant being revoked by the Minister in October 2018. During that period the Complainant was operating under a valid warrant.  It is accepted that he did not hear cases during that period. In terms of when the employment ended it is the Complainant’s submission that it has to be end of contract in this case when his warrant was revoked by the Minister.

Mr Reilly in his evidence in chief to the Court confirmed that his first Rights Commissioner warrant was from September 2007 for 3 years. In 2010 it was renewed for three years but in 2011 that was changed to four years. However, from 2013 onwards it was renewed on an annual basis as follows.

1/11/2013—31/10/2014 

1/11/2014   31/10/2015 (when the WRC came into being)

1/11/2015 to 30/9/2016

1/10 2016-- 30/9 2017 

1/11//2017 – 30/9 2018

 He received his first Adjudication Officer warrant on 1/10/2015, which was revoked by the Minister on the 25th October 2018.

 The Complainant confirmed that his last day doing paid work was 10th May 2018 and that it was a writing up day. He confirmed that he received P60’s every year. When he commenced in 2007, he received a letter of appointment dated 26/10/2007. In response to a question from Ms Kimber SC the Complainant stated that he understood the term contained in his appointment letter ‘ to operate as a service of the LRC’  to mean that the default position was, that you worked every day unless you indicated that you were not available.  He stated that you needed to give six to eight weeks’ notice of availability.  The role was dealing with alleged breaches of law and to issue decisions and recommendations in IR cases.  At the time he started work, equality and redundancy cases were dealt with elsewhere.

 He stated that the scheduling section deemed you to be available for work unless you indicated to the contrary at least eight weeks in advance. The Respondent decided where your hearings were held, and Mr Mulvey who was the Director of the LRC expected that you would work full time and you were scheduled accordingly. It was the Complainant’s evidence that he came to Dublin one week in every four or five to collect his schedule for the following few weeks and to deliver his decisions.

Normally he was scheduled for three hearings a day and hearings were for a set period of time, as parties had to be told the time and date in advance. Most cases generally finished on the day. The LRC used hotels outside of Dublin, the WRC acquired an office in Sligo where he would be scheduled for hearings.  Mr Reilly stated that when he started, he was asked to indicate the areas close to where he lived which were convenient for him and cost effective for the LRC/ WRC. He indicated Cavan, Monaghan, Mayo, Sligo and Roscommon.

The Complainant stated that it was his understanding that you could not take a day off once you had been scheduled for hearings. He gave evidence of ringing up and cancelling cases for three days because his husband was taken ill.   When scheduling holidays he would engage with the Head of Administration.

It was his understanding that he was expected to prioritise his Rights Commissioner duties and that he could not do other work that would conflict with his Rights Commissioner duties. The daily rate when he started was €408.66. In order to get paid he had to fill in a form which was compared against his diary then he was paid for the hearings he had caried out. He also received payment for one day writing up every fortnight. Initially PAYE and PRSI were deducted from his wages, but in and around 2010 Social Welfare informed the LRC of a change to his PRSI class, and he was refunded all his PRSI contributions. From that date onwards, the Respondent no longer deducted or made PRSI contributions on his behalf.

 The Complainant’s evidence was that he never filed his own tax returns as the Department deducted the relevant tax. In terms of the daily rate, it was a fixed rate. He did not invest in the employment and could not profit from same by working more efficiently.  It was his evidence that he could not cancel a case once he had given a commitment to be available.

 Prior to 2016 he was paid travel and subsistence at civil service rates if he worked away from his base. However, Revenue stopped it at that stage. Revenue decided their place of work was wherever they turned up to do the job. Following on from this, the daily rate was increased but they could not claim travel and subsistence.

 The Respondent provided training and paid for the training which was mainly in respect of new legislation. The training was both internal and external, in 2015 he attended equality training as he was also appointed as an Equality Officer. The training was a minimum of 3 sessions.  He was also able to access legal advice about cases from the LRC/ WRC legal advisors, and he did not have to pay for that advice.   The Complainant accepted that he could do private work, but he only did a small amount, and when he did private work, he paid for his own legal advice.

 The Respondent expected that decisions would be issued within four to six weeks of the hearing.  He was told that if he did not produce decisions within that time limit without good cause, he would not be scheduled until he caught up with his decision writing. Every year the Rights Commissioners had four, two-day meetings with the Respondent to discuss issues relevant to the service they provided. The agendas for the meetings were a combination of Rights Commissioner and Employer issues, and they both could put issues on the agenda.

 In October 2014, the daily rate in their contract was cut. He understood that the pay rate was linked to the Principal Officer rate. In the new contract they received in October 2014, there was an additional clause relating to Ethics in Public Office added, and he was required to fill in a declaration form each year.  The October 2015 contract was the same. In September 2017 the daily rate changed and there was a new consolidated rate.  There was also a slight change to the review meetings and that change was introduced in the 2014 contracts.

 Ms Kimber SC opened to the Court the documents which the Complainant stated, indicated that the rate of pay for Rights Commissioners, was linked to Principal Officer (PO) in the civil service.  She drew the Court attention in particular to an extract from a document produced by Maurice Cashell and also a response in the Dail to a Parliamentary Question where the answer identified that Rights Commissioners in 2009 were PO equivalent and were included in the public service numbers.

 The Complainant stated that when he commenced as a Rights Commissioner he had a shared office, a desk, filing cabinet, computer, printer, laptop, pens, paper. The LRC paid subscription for him to IRN and provided law books from time to time. He also had a secretary who initially typed up his decisions, as well as putting his cases in his diary.

When the financial crash hit, they were reduced to working three days a week and the daily rate was reduced, the secretary no longer typed decisions and recommendations but still did the scheduling.  The Complainant stated he does not accept the value put on the Rights Commissioner job in the Respondent’s actuarial report, that was provided to the Court. He confirmed that he was never provided with a contract of indefinite duration, never provided with paid annual leave or public holidays.

Ms Smith SC put it to the Complainant in cross examination that he had not been appointed through a public competition, that the ICTU had nominated him, and the Minister appointed him. He confirmed that he was appointed in line with the provisions of the 1990 IR Acts, and agreed that there was no Public Appointments competition, minimum qualifications, or interview.  It was put to the Complainant that the workflow depended on complaints made and that numbers can vary overtime and between locations. The Complainant accepted that this was not something that the Minister could control.   He accepted that he was not given any commitments in relation to the number of complaints that he would hear and that when work reduced, he got paid less.  The Complainant stated that he had to advise the Respondent six to eight weeks in advance of non- availability He also accepted that he was never told that he would be penalised for not being available.

 The Complainant confirmed he did some private work and that he was never told that there was a difficulty taking on private work. He accepted that he could select what regional areas he wished to work in and if all his scheduled cases fell, outside of a 48-hour period he would not be paid. He also accepted that he was not told of any minimum requirement in terms of the number of hearings he had to do.

The Complainant confirmed that 10th May 2018 was his last day at work and that he did not indicate to the scheduling section that he was available for work beyond that date. He accepted that as they normally gave six to eight weeks’ notice that it would have been March/April 2018, when he stopped putting his availability into the diary.  He accepted that once he did not indicate availability he was not scheduled, and that there was no penalisation for not being available other than not being paid. He accepted that it would not have been normal practise for the WRC to contact him to check if he was available.

The Complainant stated that he had a meeting with Mr Small Head of Adjudication services and gave him back the computer and printer and told him he would no longer be available to the WRC to hear cases. He could not recall the date of the meeting but accepted that it was prior to a letter of 11th September 2018 from the then Director General of the WRC noting his decision to no longer be available. In response to a question from Ms Smith SC, the Complainant stated that the meeting was probably a week or two before he received that letter from the Director General. He confirmed he had not spoken directly to the Director General or her Deputy and that the only person he told that he was no longer available, to do work for the WRC, was Mr Small.

The Complainant stated that as a Rights Commissioner he could not swop cases but following a clarification as to the evidence he had given at first instance, he accepted that as a Rights Commissioner he could swop cases with other Rights Commissioners. He also accepted that he could decide how to run the hearings, and if they settled or adjourned on the day he could go home. He confirmed that he was not subject to performance management, and that when he was offered training he was not obliged to attend and was not penalised if he did not attend.

 The Complainant confirmed that he was never asked to review or report on legislation. Counsel for the Respondent asked the Complainant, if he was aware that permanent Adjudication Officers do that type of work and are obliged to attend training and meetings of the WRC. They can also be directed to hold hearings in areas other than their main base. The Complainant indicated that he was not aware of those facts, and that he had never been directed to hold a hearing outside of his catchment area.

 The Complainant stated that he considered his warrant and a fix term contract to be the same thing.  He confirmed that he had identified Labour Court and WRC Registrar’s as comparators. He also confirmed that he did not have legal qualifications or have duties apart from those associated with holding hearings as a Rights Commissioner. He stated that he selected a Deputy Social Welfare Appeals Officer as a comparator because he understood that they are also linked to the PO pay scale which he believes indicates they are doing work of equal value.

In respect of a generic PO post, he accepted that they are recruited through a competitive process and are involved in policy and leading a large team, functions that he would not have any role in. 

 It was put to the Complainant that he was never given a commitment that he would be provided with work every day that he was available, and that he was never asked to work if he was not available.  The Complainant accepted that. He also accepted that the WRC were on notice from March/ April that he would not be available from 10th May 2018 and that he did not notify the WRC after that date to put him back on the programme.

 Ms Kimber SC in redirect put it to the Complainant that the letter from the Minister dated 25th October 2018 revoking his Adjudication Officer warrant, was only received after he informed Mr Small that he would not be doing any more work. The Complainant confirmed that was correct, and that when he stopped putting his availability into the electronic diary nothing was said by the Respondent, nor did he receive any correspondence about it.

 The next witness for the Complainant was Mr Iredale. In his evidence in chief, he stated that he received his first warrant as a Rights Commissioner on the 1st September 2003. It was his evidence that the daily rate was linked to P.O. grade 1st long service increment. The daily rate was a factor of that rate which was divided by 220 to come to a daily rate.

 The selection process at the time was based on competencies set down by the Board of the LRC. He confirmed that Rights Commissioners could swop cases with the approval of management. Swopping could be done by both the Rights Commissioners and Management. Mr Iredale stated that for health reasons he stopped working in 2007.  He later entered into an arrangement whereby he could work whatever days he could offer, which averaged about 3 days per week. When he stopped working/ resigned he requested and was given a P45, as he required same for an issue in relation to his pension. Mr Iredale confirmed that apart from Mr Reilly’s evidence about swopping cases, he agreed with the rest of his evidence.

  Ms Smith SC in cross examination put it to Mr Iredale that the role of Right’s Commissioner had not been evaluated to establish that it was equal to a P.O role. Mr Iredale stated that he was not told that a job evaluation had taken place, he was not saying one had or had not been carried out. In response to a question about contractors rate he stated that he was not familiar with contractor rates being linked to Civil Service rates. He accepted that people on contractor rates can be paid higher than people holding permanent positions. In the case of Rights Commissioner, he confirmed that the link with P.O was broken when a daily rate of €525 was imposed. He stated that he did not know if the Minister had set competencies for the role. However back in 2007 when he was in hospital recovering, he was brought into an LRC meeting to discuss terms and conditions for Rights Commissioners.

Under re-direct Mr Iredale confirmed that when he commenced working as a Rights Commissioner PAYE and PRSI were deducted and that his pay rate was linked to P.O.

 The final witness for the Complainant was Mr Hayes who stated that he was appointed as a Rights Commissioner in February 2007 and his last day in work was mid-September 2018.  He confirmed that he agreed with the evidence of Mr Reilly other than in relation to swopping cases. It was his evidence that swopping of cases was an irregular occurrence. If he wanted to do a swap, he would arrange it with another Rights Commissioner and then let his secretary know he had made the swap. It was an informal process between the Rights Commissioners.

 Ms Kimber SC submitted that the decision in Revenue Commissioners v Karshan t/a Domino’s Pizza [2023] IESC 24 removes the test of mutuality of obligation in the common law test of contract of service and moves it more in line with the meaning of worker in EU law. At EU law, a worker is a person who performs personal service in return for remuneration. The Supreme Court set out five questions that should be asked in ascertaining whether a contract is of service or for service. Ms Kimber SC submitted that the Complainant meets the preconditions identified by the Supreme Court and that Irish Law can be interpreted now following Karshan as including the Complainant as working under a contract of service. In response to a question posed by the Court as to whether an officer holder is automatically covered by the Act, Ms Kimber SC submitted that all rights and entitlements in the Acts that are given to employees are given to office holders. It is clear from the various Acts relevant to this case that office holders are deemed to be employees employed by the State or Government and come within all sections of the Act.

 Ms Kimber again in response to a question posed by the Court submitted that the entitlement to public holidays like the entitlement to annual leave accrues in line with the legal obligations set out in King v Sash Windows Workshop (C-214/16) [2018] 2 CMLR 10, [2018] ICR 693. She stated that there was no reason to differentiate between types of holidays from work simply because they are called by a different name.  There is also interchangeability because one of the options open to an employee who qualifies for public holiday benefit, is to take an additional day of annual leave. In the case to hand the Complainant did not get a paid day off, he accrues either an additional day of annual leave, or to be paid for the day.

On the issue of whether the comparators being relied on are relevant comparators for the purpose of the Act it was submitted that that the Complainant and the comparators are all paid by the state, therefore it can be said that they are working for the same employer. However, even if this is not correct, given that the Act also provides that a person is a comparator if they are working for an associated employer. The Ministers are body corporates, over which the Irish state has control.  It cannot be disputed that they are all paid for out of public money, governed by issues such as moratoriums, and the overarching body is the state.

Summary of the Respondent’s submission and evidence

Ms Smith SC on behalf of the Respondent submitted that there are four main points for the Court to consider.

• 1) Fact that Mr Reilly performed no work during limitation period
• 2) What are the EU law implications for issues to be considered
• 3) Comparators
• 4) Genuine self-employment is not unlawful.

 In respect of the first point there is no dispute that the Complainants last day working was the 10th May 2018. Neither is there any dispute that the warrants were in place until September and October 2018. In looking at whether the complaints are in time, the core question is was he a worker/employee and does he satisfy the test for same in Irish/ EU law. Ms Smith submitted that none of the tests can be satisfied by a person who does not perform work within the relevant period.

 The mere fact that a valid warrant existed does not mean the Complainant was still providing service or that the arrangement had not come to an end.  The warrants are provided under statute to give legal authority to act.  The warrant is not a contract, case law makes this clear, in particular in the case of Murphy v Minister for Social Welfare [1987] IR. 295. It is not unusual in employment law for there to be deeming provisions and this Act contains a deeming provision in respect of office holders, whereby they are deemed to be an employee, but that is not enough under EU or Irish law.  The Complainant needs to establish he had a contract of service which brings us back to the fact that during the relevant period he was not working. As to why that provision is in the Act, it is to stop blatant omissions just because a person is an office holder does not mean it is not also possible that they could be an employee. It is clear from the case of Glover v BLN |Ltd [1973] IR 389 that you can be an office holder and a contractor, or employee. However, that does not fix the factual problem that the Complainant was not working or earning, within the relevant period.

 The second point relates to the EU law implications which hold a central role but do not operate to disapply provisions that do not fit the Complainant’s factual situation. The 2003 Act transpose a directive that permits member states define employment status within the norms within that state.   The Supreme Court in the Power case as referenced by the Complainant, set out how fix term worker is defined in Irish Law.

 The third point is simply that there is nothing unlawful in genuine self-employment. The Complainant was not arbitrarily treated it was just a different manner of providing services and not unlawful.

 Ms Smith SC submitted that the final point is in respect of comparators, the 2003 Acts require that they must be the same or associated employment. This is an issue that the Complainant has failed to address in respect of his chosen comparators.  Some Adjudication Officers are employed as permanent employees and in terms of the duties there is some overlap between them and external Adjudication Officers and Rights Commissioners.  there is a huge overlap between the Complainant’s work as a Rights Commissioner and as an external Adjudication Officer.  The actuarial report submitted by the Respondent shows there is 20 -30% difference in the per diem rate and the rate of pay of an internal Adjudication Officer. The Respondent submitted that an internal Adjudication Officer was a more appropriate comparator albeit they were paid less than the Complainant. 

Mr David Small Director of Adjudication Services within the WRC witness for the Respondent, in his evidence stated that he is charged with scheduling cases efficiently and effectively and is in post since the commencement of the WRC 1st October 2015. Mr Small set out the role of the Adjudication Services and stated that they deal with approximately 12,000 specific complaints a year. Prior to the establishment of the WRC these complaints would have been spread over a number of agencies.

 Mr Small gave the background to the merging of the agencies and Rights Commissioners moving into the WRC along with the recruitment of external Adjudication Officers, and Equality Officer becoming internal Adjudication Officers paid at the assistant principal rate of pay. He confirmed that there was an internal competition in 2017/2018 which was confined to serving civil servants in the department and a competition in 2021 which was an open competition to fill positions as internal Adjudication Officers and some of the external Adjudication Officers had applied for the positions.  In the external competition they were looking for people with Humans Resources, Industrial Relations, or Legal experience and they received a good selection of applicants.

 The Rights Commissioners are providing a service on a contract for service basis they can make themselves available as they see fit by filling in their availability in the electronic diary. If they are available and there are cases available in the area where they have indicated, they are prepared to work they will be assigned cases. As cases are scheduled in advance to allow notifications to issue to parties and submissions be received, the schedulers look at availability three months in advance. They try and assign cases to Adjudication Officers in the region if there are no Adjudication Officers available, they can bring some one into the area.

 After the establishment of the WRC a training programme resulting in a qualification was developed by the Minister in conjunction with the National College of Ireland. All internal Adjudication Officers had to attend the course. The Rights Commissioners were invited to attend but were not obliged to attend and none attended.

 In terms of availability of external Adjudication Officers, they encourage them to be available three days a week but there is no compellability, and no action is taken if they do not make themselves available. Some Adjudication Officers take blocks off time off when they are not available. The nature of the work is that it is demand led and dictated by the volume of complaints being submitted. They have no control over the volume of work they receive. The WRC does not give any commitment to external Adjudication Officers in respect of the level of work available. In the past the work has run out in some geographical areas so the Adjudication Officers have a choice, they can wait until more work become available in their area or they can opt to work in another area. As the Adjudication Officers are independent, the WRC cannot provide direction to them. They hold meetings and all the Adjudication Officers are invited to the meetings.  The purpose is to give updates in respect of the law, new legislation and encourage peer discussion on issues that might be surfacing.  The first of these meetings was held in 2016.

 The administrative staff in the area process applications then it moves to scheduling who put the cases in the Adjudication Officers electronic diaries. The WRC does not issue equipment such as laptop or phones to external Adjudication Officers. However, the Rights Commissioners had received same from the LRC, and the WRC phased it out for Rights Commissioners over time. The per diem rate is set by DPER, initially the WRC rate for Adjudication Officers was €380 a day and the Rights Commissioners were on a higher rate. The rates were eventually merged, and the rate now is €525. They are assigned two / three cases a day depending on the nature of the case. They must submit a claim form to get paid, the form is checked against their electronic diary to ensure they carried out the hearing. If cases are withdrawn, they are taken out of the Adjudication Officers electronic diary. Postponement or withdrawal of hearings within a 48-hour period will be paid as they will have carried out preparatory work. Cancellations or postponements outside of 48 hours are not paid for. Tax is deducted from the payment and remitted to Revenue.  Travel and subsistence is not paid as Revenue will not approve payment of same.

 Internal Adjudication Officers work Monday to Friday 9 to 5, can be asked to travel from time to time and get paid travel and subsistence.  Internal Adjudication Officers have to accept assignments, they also do mediation, outreach work, carry out reviews of multiple cases, do work around Oireachtas reports, new legislation and they are subject to performance management which does not apply to the external Adjudication Officers or Rights Commissioners. The only function that overlaps with the external Adjudication Officers is the hearing of cases.

 In respect of Mr Reillys last working day 10th May 2018, the WRC would not do anything if an Adjudication Officer did not indicate his availability.  Ms Smith SC asked what would happen if an internal Adjudication Officer didn’t make themselves available for work. Mr Small said that couldn’t happen they would be performance managed; it would be a breach of the time and attendance policy and could be a disciplinary matter.

Mr Small stated that he remembered Mr Reilly coming to him and advising that he would no longer be available to do hearings, but he couldn’t remember the exact date. He indicated that he was absent from work for about 10 weeks from 4th July 2018 for medical reasons so it could not have been during that period. (Following the hearing Mr Small provided a medical certificate showing he did not return to work until the 17th September 2018).  He remembers Mr Reilly giving him back a laptop and printer but cannot be sure if it was at the same meeting, he returned the items to corporate services. He informed the Chief Operations Officer and the Director General that Mr Reilly was not going to be available to them going forward.

 Under cross examination Ms Kimber SC put it to Mr Small that his evidence had been only the internal Adjudication Officers could provide mediation, but the legislation actually provided for staff of the WRC and other appropriate people. Mr Small stated his understanding was that only internal Adjudication Officers could mediate.

 He confirmed that he was not around when Mr Reilly started work. He accepted that the letters referenced terms and conditions and that the terms and conditions in the letters he received with his warrants were identical before and after 2017.  In response to a question from Ms Kimber SC, Mr Small stated that he did not know if the WRC gave contractors P60’s as that was not within his remit. 

Ms Kimber SC asked Mr Small to comment on a letter written by consultants on behalf of the WRC to the Revenue Commissioners, which used the words “contracts” and “required”, in respect of the external Adjudication Officers and Rights Commissioners. Mr Small was asked if he accepted that Rights Commissioners and Adjudication Officers are not comparable. He stated that there are overlaps and he accepted that AP’s and PO’s do different work. It was put to Mr Small that scheduling was done to facilitate the parties and the WRC in achieving targets/metrics. Mr Small stated that it also facilitates the Adjudications Officers by putting cases in their areas.   Mr Small confirmed that when the service was based in Tom Johnson House that the Rights Commissioners had access to photocopiers and computers. They were invited to attend meetings which discussed new legislation and caselaw, but they were not obliged to attend unlike the internal Adjudication Officers. They would normally be invited by email to attend.

 In terms of the difference between internal and external Adjudication Officers Mr Small said that internal Adjudication officers only do hearings 40 % of the time as opposed to 100% for the externals.  

He accepted that clients attending hearings would not know if it was internal or external Adjudication Officer and that there was no open competition for internal adjudication Officers before 2021.

Mr Small in response to a query from Ms Smith SC on redirect, stated that the WRC inherited 4,000 legacy cases in addition to cases coming in from 1st October 2015 and only the Rights Commissioners could deal with legacy cases, they could make themselves available for more than three days if they wanted to. He confirmed that they would never revoke a warrant because someone did not make themselves available.

 The Complainant was brought back into evidence to address one issue in respect of training, he confirmed he never received an email in 2016 inviting him to attend a training course.

 The next witness for the Respondent was Ms Coogan Principal Officer in IR/ WRC Liaison within the Department of Enterprise Trade and Employment, Ms Coogan informed the Court that she had worked in that section since September 2018.  She stated that she had knowledge of the recruitment process for Rights Commissioners as it was set out in the legislation. The social partners nominated people, the minister did not dictate criteria the only criteria was that they were nominated by either IBEC or ICTU. A business case then had to be made to DPER for funding for the posts. Every time a warrant has to be renewed; they have to submit a business case to DPER.

 Ms Coogan stated that the Rights Commissioners and external Adjudication Officers get a per diem rate and one writing up day a week The ethics in Public Office applies to them, because of the nature of the work they are doing, and the fact that they are getting paid from the public purse. However, they are not covered by the Official Secrets Act as they are not Civil Servants.

The nature of the relationship as viewed by the Minister/ Department is that they provide a service.  The WRC is a new organisation, they have a better handle now on the annual volume of work and the work is there now to hire a larger number of AP internal Adjudication Officers. A lot of people who apply for the external posts have other businesses and existing model suits them.

 Under cross examination Ms Kimber SC put it to Ms Coogan that her time in the section only overlapped with Mr Reilly by a period of two or three weeks, so she really did not have anything to do with any of the relevant matters. Mr Iredale gave evidence that the LRC Board set out competencies for the roles. Ms Coogan indicated that she accepted that.  She confirmed that they have to submit a business case in order to get funding for the position. The per diem rate is calculated by looking at the rate an employee would get for the job and then adding on extras like pension, holidays which in this case brings it up near the PO scale.

 In response to a question under redirect from Ms Smith SC as to why the department would compensate contractors. Ms Coogan stated that the cost to the department works out more or less the same as department had to cover these costs for internal staff.

 Ms Smith SC submitted that the Karshan case is relevant to the case to hand. The law has significantly changed such that mutuality of obligation is no longer required to be established, in the manner in which the law previously required it to be. In the case before this Court, it is not disputed that the Complainant did not provide any service to the Respondent during the limitation period set down in the Act. Unless the Complainant comes within the scope of the Acts during that period, there could not have been any breach. The Complainant has to establish that in the period after he had ceased to provide services to the Respondent, that he was nonetheless in a contract of service with the Respondent.  It is the Respondent’s submission that there was no such contract in place and that the decision in Karshan supports the Respondent’s position.

 Ms Smith submitted that it is clear that during the limitation periods set down under the various Acts under consideration in this case the Complainant was not a worker as defined by EU law as he did not perform work for remuneration in that period.

 In respect of the deeming provision relating to office holders in the various Acts, the deeming provision has the effect of ensuring that officer holders by virtue of that status, are not excluded from the relevant acts. The acts do not however deem that office holders are party to a contract of employment with an employer. That is a matter to be determined on the facts of the case.

 The Respondent disputes the contention by the Complainant that public holidays are treated the same as annual leave in EU case law. Neither the directive nor the OWTA provide for the accrual of a right to payment in lieu of public holidays arising on the termination of employment.

 In respect of the comparators put forward by the Complainant the Respondent disputes that it is an associated employer or the same employer as the chosen comparators. The Complainant is required to establish the control element in the relationship between the contended associated employers. No such evidence has been established and the requisite element of control is simply not present between the Respondent and the associate employers contended for on the part of the Complainant.

The relevant law

Conditions of employment for fixed-term employees.

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997 .

Discussion.

As set out earlier in this decision the parties raised a number of preliminary issues.  It appeared logical to the Court that the starting pointing in terms of addressing the preliminary issues was to first establish on the balance of probabilities when the contractual arrangement ended as that issue had the potential to decide the case.  The Complainant submitted that the contractual arrangement came to an end on the date that his warrant was revoked by the Minister 25th October 2018, and the Respondent submitted that it was the last day the Complainant carried out work for the Respondent which both parties had agreed was 10th May 2018.

The evidence before the Court from Mr Small was that the fact that a Rights Commissioner or external Adjudication Officer did not make themselves available for scheduling would not automatically result in their contract being terminated. The Court notes that other than not making himself available for work there was no other event in and around the 10th May 2018 that would indicate that the contractual arrangement was terminated at that point.  The Court therefore determines that the contractual arrangement did not cease on 10th May 2018.

  In respect of the Complainant’s submission that the contractual arrangement ended on the 25th October 2018, the Court noted that it was not in dispute that the Complainant had received a letter from the then Director General of the WRC, on the 11th September 2018 which stated “I refer to your recent decision to stand down as a Rights Commissioner and Adjudication Officer in the WRC.”  It stands to reason therefore that the contractual arrangement had to have terminated prior to the issuing of that letter on the 11th September 2018, and therefore, in advance of the warrant being revoked on the 25th October 2018. The Court determines that the contractual arrangement ceased prior  to the warrant being revoked on 25th October 2018.

Having decided that the contractual arrangement did not come to an end on either of the above dates, the question of when the contractual arrangement terminated remained to be considered by the Court.

 The Complainant in his sworn evidence to the Court stated that prior to the receipt of the letter dated 11th September 2018, from the Director General of the WRC, he had called into Mr Small in his office, and returned his computer and printer.  He advised Mr Small that he would no longer be making his services available to the WRC. This appears to the Court to be a clear indication from the Complainant that he was bringing the contractual relationship to an end at that point. The Complainant’s evidence was that he could not recall the date of that meeting, but it was prior to receiving the letter of the 11th September 2018 from the Director General. It was his evidence that it was probably a week or two beforehand.

  Mr Small in his evidence recalled meeting with the Complainant and being advised that the Complainant was no longer prepared to make his services available to the WRC, he also recalled being given the printer and the laptop but was not sure if it was on the same day. He could not recall the exact date the meeting occurred, as it was not a scheduled meeting, but he stated that he was absent from work on certified sick leave from 4th July 2018 to 17th September 2018, so it would have to have happened prior to the 4th July 2018.

Having determined that the contractual relationship ended at the meeting between the Complainant and Mr Small as set out above, it is clear from the sworn evidence to the Court that the latest date that could have happened was 3rd July 2018, as Mr Small was absent from work from that point until 17th September 2018 which was after the letter issued from the Director General.  The Court, therefore, determines, that the date the contractual relationship came to an end was no later than 3rd July 2018.

As set out at the start of this decision this complaint was submitted to the WRC on 26th February 2019, therefore the limitation period under the Act is 27th August 2018 to 26th February 2019. The Complainants contractual arrangement ceased no later than 3rd July 2018, therefore there can be no breach of the Act during the limitation period and the Court does not have jurisdiction to consider the substantive issue. Having found that the Court has no jurisdiction to consider the substantive issue, there is no need for the Court to consider the other preliminary issues raised by the parties.

Decision

The Decision of the Adjudication Officer is varied accordingly.

The Court so Decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
24th May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.