Complainant

Respondent

Anonymised Parties

PR Manager

Hotel Resort

Representatives

Self-Represented

Ms. Terrisue Cosgrove, The HR Head

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057988-002

09/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057988-003

09/07/2023

By the complaint form as filed with the Commission, the Complainant submitted that she commenced employment with the Respondent on 17th August 2022. The Complainant described herself as a “PR & Digital Marketing Manager” and submitted that she received an average weekly wage of €980. The Complainant stated that her employment was terminated on 1st July 2023 by the Respondent. It should be noted from the outset that the Respondent strenuously denies that the Complainant was ever their employee and, consequently, each of the points above were disputed during the hearing.

On 9th July 2023, the Complainant referred the present complaints to the Commission. Herein, the Complainant raised numerous allegations in respect of her engagement with the Respondent, with the primary thrust of the same being that they refused to identify her as their employee for the duration of her engagement. By response, and as a preliminary issue as to jurisdiction, the Respondent submitted that the Complainant was never an employee of the Respondent, and that all work completed on behalf of the Respondent was done so as an independent contractor.

Hearings in relation to these matters were convened on 24th November 2023 & 23rd April 2024.  These hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. This hearing was listed and heard in parallel to those bearing file references ADJ-00046181, ADJ-00045524 & ADJ-00047375, and this decision should be read in conjunction with the same.

Prior to the initial hearing of the matter, the Respondent made an application to adjourn the proceedings on the basis of a concurrent investigation being undertaken by the Gardaí. From the information provided by the Respondent, it became apparent that the Complainant was to the subject of the investigation. Given that the Complainant herself did not apply for the matter to be adjourned on these grounds and in light of the fact that she remained anxious for the matter to proceed, no exceptional circumstances existed to generally adjourn the hearing. It is further noted that, on the date of the hearing, the Gardaí had commenced their enquiries and that no other proceedings were in being at the time. Notwithstanding the foregoing, in circumstances whereby a parallel third party investigation is underway, this decision will be anonymised in its published form.

Both parties issued extensive submissions in support of their respective positions prior to the hearing. Following the hearing, the Complainant issued volumous additional, unrequested submissions regarding much of the subject matter of the hearing. On receipt of the initial set of such submissions, the Complainant was informed that same were not required and that the instant decision would rely on the sworn evidence of witnesses present at the hearing and the documents opened during such evidence. In this regard, the Complainant gave evidence in support of her own complaint, while an Office Manager, the Chairman of the Board of Directors and the former General Manager gave evidence in defense. All evidence was given under oath or affirmation and was opened to extensive cross examination by the opposing side.

In evidence, the Complainant stated that she formerly worked with the Respondent organisation for a short time some years ago. This previous engagement was brief, as the parties could not formalise the Complainant’s visa requirements as a non-European resident. Following this brief engagement, the Complainant remained in contact with management, in particular the then General Manager of the Respondent, with a view to applying for a visa and returning to employment with the Respondent. In early 2022, the Complainant delivered a presentation in relation to certain PR and marketing services she could provide to the Respondent. Following this presentation, the Complainant began to provide such services on a contract basis while she progressed her visa application. To this end, the Complainant frequently corresponded with then General Manager regarding the process and the requirements of the Respondent thereunder. In evidence, the Complainant stated that while she completed the application, the same was processed on the instruction and with the blessing of management.  She further submitted that the application process required certain information to be provided by the Respondent, and that they remained informed of the progress of the same throughout the process. In this regard, the Complainant stated that the Respondent directly discharged the fee for the application.

Thereafter, the Complainant was informed that she had been awarded a work permit for a role with the Respondent to commence in August 2022, and began to make preparations to travel to the state to take up employment. Unfortunately, at this time, the Complainant’s mother became ill, and she was forced to delay her arrival to the state. At this time, the Complainant was completing some PR work on a remote basis for the Respondent on the understanding that she would be formalised as an employee shortly thereafter.

In October 2022, the Complainant travelled to continental Europe to represent the Respondent in her role as PR Manager for the same. On her return, the Complainant had a conversation with the accounts manager for the Respondent, during this conversation, the Complainant was informed that she would be entered onto the Company payroll as an employee, once she had received the relevant revenue paperwork. While this was ongoing, the Complainant continued to bill her hours as independent contractor in order to retain some form of income.

In November 2022, the Complainant attended the Respondent’s on-site AGM, and met the relevant members of the Respondent’s management at this time. While the Complainant had numerous constructive conversations with the Chairman of the Board, it became apparent that the Chairman was not aware of the contract she had agreed with the general manager. Nonetheless, the general manager assured the Complainant that her contract of employment would be honoured.

In December of 2022, the Complainant’s working conditions began to deteriorate with the appointment of a new General Manager of the Respondent. The Complainant set out, at length, the difficulties this new manager caused her in the performance of her duties. The Complainant stated that while she conducted much of her role remotely, she was present at the Respondent’s premises for much of December 2022. Towards the end of that month, the Complainant left the state in order to spend the holidays with her family.

In January of 2023, the Complainant began the process of overhauling the Respondent social media, website and booking channels. The Complainant also discovered that the former General Manger was to have limited ongoing involvement in the business. While the Complainant was experiencing ongoing difficulties regarding the newly appointment General Manager, she still continued to perform her duties to the best of her ability. On 23rd January 2023, the Complainant received an email from the former General Manager demanding the return of various “codes” and passwords. The Complainant was also banned from the property in this email. Naturally, this communication came as a complete shock to the Complainant, not least as it appeared to constitute a disciplinary sanction in the absence of any form of procedure.

Thereafter, the Complainant entered into a period of communication with various members of the management of the Respondent. As the Respondent had refused to schedule any meetings with her in respect of her ongoing issues, and had refused to engage with her generally, her only form of recourse was to contact the directors directly. Despite the Complainant’s best efforts in this regard, the Respondent continued to refuse to engage with her.

In June of 2023, the Complainant received notification that the Respondent had issued a report to the Department of Enterprise, Trade and Employment to the effect that she was not and had never been an employee of the Respondent. Again, this development came as a shock to the Complainant, given that she had entered into a contract of employment with the Respondent some time ago. The Complainant viewed this communication as being entirely false and submitted that the same constituted perjury on the part of the general manager of the Respondent.

By submission, the Complainant stated that she was an employee of the Respondent from the awarding of her visa in August 2022, to the date on which the Respondent falsely denied that she was their employee in June 2023. In this regard, she submitted that the Respondent failed to provide any of the statutory protections relevant to her as an employee and that they had repeatedly misrepresented their relationship to outside authorities. In this regard, the Complainant submitted that the only appropriate form of recompense in the circumstances was that she be reengaged as an employee of the Respondent.

In answer to a question posed in cross examination, the Complainant confirmed that she sourced and amended the contract of employment that was appended to the visa application. She also confirmed that she signed the application on behalf of the general manager. When it was put to the Complainant that the General Manger was unaware of the substance of the application, the Complainant referred to various personal communications with the general manager regarding the substance of the application. The Complainant further referred to various documents received on foot of a data access request to the relevant government department. While the names of the individuals involved were redacted, she stated that these documents clearly indicate that both the General Manager and Accounts Manager of the Respondent engaged in the application process. In answer to a further question, the Complainant accepted that all services provided were billed through a corporate entity controlled by her, in this regard he stated that she requested to be placed on the payroll of the Respondent, but that this was not facilitated.

In answer to a question posed by the Adjudicator, the Complainant accepted that the Respondent’s correspondence of 23rd apparently served to terminate her engagement. Nonetheless, the Complainant referred to correspondence issued the following day apparently resiling from this position and confirming, in the Complainant’s view, that she was to remain their employee.

By submission, the Respondent denied that the Complainant was ever employed by them, and that as such she did not enjoy locus standi to being the present set of complaints.

In this regard, they submitted that in March of 2022, the chairman of the board of directors granted approval for the Complainant’s UK based company to provide consultancy marketing services for the Respondent. The initial rate for this arrangement was set at €1,200 per month. From March 2022, the Complainant, through her company, began to invoice the Respondent for the agreed sum. In this regard, the Respondent opened documentation from the Companies Registration Office demonstrating that the limited company was incorporated on 19th May 2020 and that the Complainant was listed as the sole company director, with a 100% shareholding.

During the Complainant’s tenure as a marketing service provider for the Respondent, she began the process of application for an Irish Work permit with the sponsorship of the Respondent. In evidence, the Chairman of the Board of Directors stated that he had no knowledge of this application, and that the same was not processed with the consent of the Board.

Thereafter, the Complainant was asked to attend the Respondent premises for the AGM in November 2022, in order for her to be introduced to the shareholders in person. During a meeting with the Chairman prior to the same, the parties had a discussion regarding her ongoing duties. At no point during this conversation was the Complainant’s employment status discussed. Prior to this AGM, and during the period the Complainant purported to be an employee of the Respondent, she invoiced the Respondent for flights and travel expenses as a contractor via her limited company. At the AGM, the Complainant requested that her company be listed as point on the agenda of the meeting. At the meeting, the Complainant successfully negotiated an increase in the rate of pay to her third-party company to €1,500 per month.

Following the AGM, the shareholders of the Respondent were informed by the exiting general manager that the Complainant had applied for a work permit and intended to become an employee of the Respondent. In this regard, the Chairman advised the incoming general manger to work with the Complainant in this regard.

On 8th November, the Complainant issued an email to the new general manager stating that if she was to permanently re-locate to the state, she would require to be appointed to the role of director of marketing or, in the alternative, be appointed as a non-executive director of the Respondent. Thereafter, on 9th November the Complainant again corresponded with the Respondent advising that she does not wish to report to the newly appointed general manager and again requests that she be appointed as a non-executive director. Shortly following the issuing of this email, the Complainant again left the state to attend to her own affairs.

In December 2022, the Complainant returned to the Respondent premises, and for a number of days, performed her duties from this site. During this period, the Respondent alleged that the Complainant made several alterations to the Respondent’s digital marketing assets, including changing the passwords for numerous services that remained crucial to the Respondent’s ongoing activities. In late December, while the Complainant was again out of the state, she sent numerous emails to the effect that she could not continue her engagement with the Respondent and that she was either considering terminating her agreement with the Respondent or that she had terminated her agreement with the Respondent. Again, on 4th January 2023, the Complainant issued an email to the shareholder of the Respondent advising that she and her limited company intended to terminate their agreement with the Respondent. Later in the week, the office manager learned that the Complainant had locked the Respondent out of its website and booking system. When asked, the Complainant refused to share the new passwords she had created. At this point, the relationship between the Complainant and the Respondent had irretrievably broken down. On 23rd January 2023, the former General Manager issued an email to the Complainant categorically stating that her engagement with the Respondent had terminated and that she was to return all company property as soon as possible.

Following these developments, the Respondent discovered that the Complainant had relocated their website to an alternative hosting site and that they were locked out of their booking systems and many other digital assets.

In evidence, the Chairman of the Board of Directors categorically started that at no time was the Complainant an employee of the Respondent. He stated that any such appointments must be ratified by the board of directors, and confirmed that no such appointment was proposed, let alone confirmed. He stated that the Complainant was engaged to provide external marketing services. In this respect he stated that an organisation of the Respondent’s size would never require a full-time marketing manager. He stated the Complainant came to the Respondent’s premises on their invitation and aside from a few isolated days in November and December, spent almost no time at the Respondent premises.

In evidence, the Office Manager of the Respondent confirmed that the Complainant attended the Respondent premises for a number of days in November and December only. She stated that on these dates the Complainant effective worked in isolation from the rest of the staff and that she did not integrate with the rest of the workforce at this or any other time.

On the date of the resumed hearing, the former managing director gave evidence. He stated that he had no knowledge of the Complainant’s application for a work visa as sponsored by the Respondent. He stated that he did not sign any such document, and did not provide the contract of employment that was appended to the same.

In answer to a question posed by the Adjudicator, the former general manager accepted that his successor had issued correspondence to a government department advising that the Respondent had worked with the Complainant in securing a visa and had intended that the Complainant enter into their employment thereafter. He also confirmed that the various correspondences referenced by the Complainant in her evidence had issued from him. In answer to a further question posed by the Adjudicator, the witness confirmed that his email of 23rd January served to terminate any agreement with the Complainant. Notwithstanding the same, he submitted that the Respondent was desperate to recover the assets retained by the Complainant, in this regard he accepted that he issued a more conciliatory email the following day but denied that the same operated so as to re-engage the Complainant.

By submission, the Respondent submitted that at all times, the Complainant was engaged as an independent contractor within the Respondent organisation. In this regard, they submitted that the Respondent exerted little to no control over the Complainant in the exercise of her duties. In this regard it was submitted that the duties in question were actually completed by the limited company of which the Complainant was the sole director. In this respect, the Respondent submitted that the Complainant retained complete autonomy over the strategies and operations of this company. In this regard, the Respondent further submitted that they imposed no restrictions of when, when or how the Complainant completed the work assigned to her company. The Complainant was not provided with a work schedule or requested to be in the state while performing these services. They further submitted that the Complainant was assigned no company laptop, phone or other assets to complete the work. The Respondent further opened an email from the Complainant dated 3rd December 2022 whereby the Complainant advises that she intended to suspend services to the Respondent on foot of her dissatisfaction with the operation of the Respondent. In this regard, the Respondent opened further correspondence from the Complainant dated 24th January 2023, whereby she describes herself as a “contractor” and requests to be appointed as a non-executive director, itself role that does not create an employment relationship. Finally, the Respondent submitted that the Complainant was in a position to substitute others to complete the work for her so long as the work was completed by her limited company. In this respect, the Respondent referenced one of the Complainant’s invoices that named a different individual within the company.

In the present case the parties are in complete disagreement on many factors, the most notable of which being the correct employment status of the Complainant. In this regard, the Complainant has submitted that while she performed some duties as an independent contractor, following a successful application for a work permit, she became an employee of the Respondent. In this regard, she submits that she was engaged as an employee of the Respondent from August 2022, until her work permit was cancelled following an inaccurate and illegal representation from the Respondent to the relevant government department in June 2023. In denying this allegation, the Respondent disputed that the Complainant was, at any time, an employee of the Respondent, and submitted that she remained an independent contractor throughout the engagement between the parties. As preliminary issue will be determinative of the substantive complaints, it will be considered in advance of the same. 

In this regard, Section 1 of the Act defines “employee” in the following terms,

“…an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly”

The subject of what constitutes a “contract of employment” for these purposes has been the focus of numerous Judgements of the Superior Courts in recent times. Most notably, the Supreme Court issued an authoritative determination in the matter of Revenue Commissioners v. Karshan [2023] IESC 24. Here, following a consideration of the considerable body of law in this particular area, the Supreme Court posed the following five questions that must be examined prior to reaching a determination in this regard:

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.”

Regarding the instant case, much of the dispute centred around the Complainant’s application for a critical skills permit and the extent of the Respondent knowledge of, and involvement with, this process. In this respect, the Complainant submitted that she completed this process with the consent of, and direct assistance from, the Respondent. In this respect, the Complainant opened various communications from then General Manager of the Respondent advising the Complainant to make such an application and acknowledging the application whilst the same was in progress. In addition to the same, the Complainant opened documents received from the Department of Trade Enterprise and Employment, demonstrating that the application was issued to the general manager and the accounts manager of the Respondent throughout the approval process. Finally, it is noted that in seeking to cancel the Complainant’s employment permit, the general manager’s successor stated that the while the Complainant applied for the work permit herself, she did so with the assistance of the former general manager. While the Respondent has noted that the Complainant signed the application on the part of the former general manager, and apparently drafted the attached contract of employment of her own volition, it is apparent that the senior management of the Respondent was aware, at all times, that the Complainant intended to make such an application in the anticipation of the commencement of direct employment with their organisation.

In this regard, Section 8 of the Employment Permits Act 2006 provides that,

“(1) Subject to sections 3A, 10, 10A, 12, 14, 20A and 20B and section 2(11) of the Act of 2003, the Minister may, on application made to him or her, grant an employment permit.

(2) The employment permit so granted shall operate to permit the employment in the State of the foreign national—

(a) in the employment specified in the application by—

(i) the person, specified in the application, who made the offer of employment”

In this regard, the Department of Trade Enterprise and Employment’s website states that,

“The employment permit will issue to the prospective employee (a certified copy will issue to the employer). The permit allows the prospective employee to be employed in the State by the named employer and in the occupation and location/s specified on the permit.”

In such circumstances, it is apparent that it is a condition precent of such applications that the applicant must have secured an offer of employment prior to the award of the permit. While the Respondent has raised many deeply concerning points in respect to the manner by which the Complainant applied for this permit, the fact remains that management of the Respondent was aware that the Complainant was making such an application and should have been aware that such application would, by operation of the statute, serve to create an employment relationship between the parties.

Notwithstanding the foregoing, the evidence of the Chairman of the Board for the Respondent was that the board was entirely unaware of this process. He stated that any such appointments would have to be ratified by the board, and in this respect, he was adamant that no such appointment was proposed or ratified. While this may be the case, the fact remains that the General Manager of the Respondent was aware of the proposed appointment, and in such circumstances, he should have informed the board of management in compliance with the Respondent’s policy in relation to such matters.

In such circumstances, it is apparent that the Complainant had engaged with the most senior member of management of the Respondent in respect to her entering into a contract of employment. While the Respondent has raised numerous concerning issuing regarding the manner by which this process transpired, not least the fact that she conceded that she signed the form on behalf of the General Manager, the fact remains that at the Respondent as an organisation willingly entered into a process that would have the direct effect of creating a contract of employment between the parties. While the Respondent has submitted that the Complainant provided services as an independent contractor thereafter, in such circumstances it is the responsibility of the Respondent to clarify the Complainant’s employment status. If the Respondent intended for the Complainant to remain as an independent contractor, then they had a duty to make this extremely clear to her, particularly when her ongoing residence in the state was dependent on her ongoing employment with the Respondent. As matters transpired, it is apparent that the General Manager, the Chairman of the Board and the incoming General Manager all apparently had different levels of knowledge to and understanding of the Complainant’s status. While the Complainant’s actions in applying for the employment permit are not without deeply concerning issues, she cannot be held responsible for such dysfunction on the part of the Respondent. In this regard, I note the Complainant’s evidence to the effect that she spoke with the accounts manager of the Respondent in respect of being placed on payroll and was informed that this would occur once she spoke with the Chairman of the Board.

One of the few points not in contest between the parties was that from March 2023, the Complainant provided services to the Respondent as an independent contractor. Such services were provided by a third-party corporate entity, of which the Complainant was the sole shareholder and director. The position of the Complainant was that this arrangement was to come to an end with the commencement of her visa in August 2022. In the alternative, the position of the Respondent was that the Complainant remained an independent contractor at all times and, notwithstanding the terms of the Complainant’s visa, that she did not take up direct employment with them at any point during their engagement.

In this respect, it is noted that on the Complainant did not physically attend the Respondent’s premises until the company AGM in November 2022. From August to November, the Complainant submitted that she was an employee of the Respondent, albeit working on a remote basis. In this regard, the Respondent had raised numerous issues regarding the level of control they exerted over the Complainant at this juncture. In this regard, they submitted that they exerted little to no control over the Complainant in the manner by which she performed her duties and noted that the Complainant performed most of her duties on a remote basis. While the concept of control is a crucial criterion by which an engagement might be classified as a contract of employment, in recent times an increasing number of roles are performed either fully or partially remotely. In this respect, the performance of such duties on a partially or indeed fully remote basis may be in keeping with duties performed under a contract of employment. In this respect, the nature of the Complainant’s role was such that such duties could be performed remotely without the necessity of attendance at the Respondent’s premises. The evidence of the Complainant in this regard was that she performed such duties under the direct control and supervision of the incoming general manager, indeed this was the basis of much of her dispute with the Respondent thereafter. Again, if it was the case that the Complainant was to continue to perform these duties as an independent contractor following her attendance at the AGM, this should have been expressly communicated to the Complainant without any hint of ambiguity,

In January 2023, it is apparent that the parties fell into dispute and shortly thereafter, relations between the Complainant and the Respondent appeared to irretrievably deteriorate. In this respect, it is noted that during the period, the Respondent alleged that the Complainant changed numerous passwords and other digital marketing resources and subsequently refused to share same with management of the Respondent. While the substance of this dispute is beyond the remit of this investigation, it noted that under a contract of employment, the normal manner by which such matters would be investigated and considered is through the Respondent’s disciplinary policy. One of the central aspects of an employer’s control over an employee is that they retain the right to engage in disciplinary proceedings should an employee be suspected of engaging in misconduct or wrongdoing. In the present case, while the Respondent issued solicitor’s letters in respect of the issue, and entered into period of negotiation with the Complainant regarding the same, it is apparent that they did not seek to engage the disciplinary procedures as a manner of exerting control over the Complainant. While the Respondent’s failures in this regard served to further aggrieve the Complainant, in that she repeatedly requested meeting with the Respondent in respect to these matters, such a position is not in keeping with the control aspect of a contract of employment.

In evidence, the Complainant opened correspondence from the Respondent dated 23rd and 24th January. In the former correspondence, the Respondent sought to ostensibly terminate the agreement with the Complainant, while in the latter, the former General Manager stated that should the Complainant return the various passwords and digital marketing assets, the Respondent would come to an arrangement regarding the Complainant’s ongoing visa and continued residence. In evidence, the former general manager submitted that at this point the Respondent had reached a point of extreme desperation and would have essentially done anything to retrieve the digital assets. The most striking point in relation to the foregoing is that it is utterly inappropriate for the Complainant’s visa status and ongoing residence to be used as a form of bargaining chip in a dispute with the Complainant. The foregoing further illustrates that the Respondent was well aware of the Complainant’s status and were prepared to rely on the same, and the consequent contract of employment implied by the same, when the result was to be to their benefit. 

In consideration of the accumulation of foregoing points, it is apparent that the present factual represents an extremely unusual set of circumstances. Even in consideration of the volumous submissions from the parties and having the benefit of sworn evidence from the relevant witnesses, it remains difficult to classify the relationship between the parties with any degree of certainty. Nonetheless, applying the test set out in Karshan, it can be seen that the contract between the Complainant, or at least the corporate entity controlled by the Complainant, and the Respondent involved the exchange for remuneration for work. While the Respondent placed a great deal of reliance on the fact that all payments were issued through a third-party company controlled by the Complainant, such a system is commonplace in complaints of incorrectly classed self-employment and cannot, of itself, disqualify the existence of a contract of employment.

Regarding the second criterion, the evidence of the Complainant was that she worked under the direct control and supervision of the Respondent. While the Respondent submitted that a third party could have provided such services, there is no evidence of the any such services being provided by a third party.

In considering the test outlined in Karshan, it is noted that the fourth criterion states that in circumstances whereby the initial three criteria are met, an examination of the fourth and fifth points must be undertaken to determine the Complainant’s employment status. In this regard, points four and five advise that,

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.

In this regard, the position of the Respondent was that the relationship between the parties was entirely inconsistent with a contract of employment and that the arrangements did point to the Complainant working for herself. While this point is far from conclusive, given the findings above, the fifth criterion advises that any such finding must be adjusted based on the existence of a particular legislative regime. In this regard, the relevant legislative regime provides that in sponsoring, or at least having constructive knowledge of the application for, residence, the Respondent engaged in a process that would have the legal requirement of the creation of a contract of employment. In such circumstances any such finding in respect of criterion four must be viewed in this respect.

Applying the foregoing to the impleaded legislative provisions, it is apparent that the Complainant was engaged under a contract of employment as outlined in Section 1, cited above.

Regarding the Complainant’s date of dismissal, the Respondent has submitted that the engagement between the parties ended on 23rd January 2023, and that the parties have been engaged in various disputes thereafter. In the alternative, the Complainant has submitted that she remained in the Respondent’s employment until June 2023, when the Respondent corresponded with the relevant government department and falsely claimed that was not, and had never been, their employee.

In the matter of In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753 the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

Having reviewed the relevant correspondence issued from the Respondent, and having had the benefit of direct evidence from the author of the same, it is apparent that the Respondent sought to terminate any engagement between the parties on foot of the correspondence. While the Complainant is correct in that correspondence issued the following day stating that the Respondent would examine the retention of the Complainant’s work permit, such an offer formed part of a negotiation, and did not serve to undo the effect of the previous correspondence. While the Complainant has submitted that her employment terminated in June of that year, it is noted that the correspondence in question was not directly issued to the Complainant, and was instead issued to the relevant government department.

Having regard to the accumulation of foregoing points, and the totality of the evidence presented by the parties, I find that the Complainant was an employee of the Respondent from August 2022. In addition to the foregoing, I find that the contract of employment was terminated by the Respondent by way of correspondence dated 23rd January 2023.

In this regard, Section 4 of the Act provides that,

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week”

In circumstances whereby the Complainant was dismissed without notice on 23rd January 2023, I find that the complaint is well-founded, and the Complainant is entitled to one week of notice. In this respect, it should be noted that the parties remain in conflict. While the Complainant has submitted that she provisionally agreed an annual salary of €44,000 per year, or €846.15 per week. By response the Respondent submitted that no such salary was ever proposed to or ratified by the Board of the Respondent. In such circumstances they submitted that the Complainant received payment for all work completed by way of the invoices to the corporate entity controlled by her.  As these payments constituted €1,500 per month, it would follow that the average weekly payment can be calculated at €346.15. In this regard, it is noted that the Complainant sought an increase of this monthly payment prior to the Respondent’s AGM, and was awarded the same following meeting. In this regard, it is noted that this occurred during a period of the Complainant’s employment and consequently can be viewed as payment for the services rendered by her. Having regard to the foregoing, I find that the Complainant is entitled to one week’s wages of €346.15 in compensation for the Respondent’s breach of the Act.

CA-00057988-002

I find that the complaint is well-founded. Regarding redress, I award the Complainant the sum of €346.15 in compensation.

CA-00057988-003

In circumstances whereby this complaint is apparently a duplicate of the matter listed above, I find that the complaint is not well-founded.

Self-Employment, Karshan, Visa, Control