Complainant

Respondent

Parties

Gerard N. Murphy

Residential Tenancies Board

Representatives

Declan O’Toole & Co Solicitors

ByrneWallace LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

CA-00046479-001

01/10/2021

The complainant was appointed in December 2010 to a panel of adjudicators and a panel of mediators maintained by the respondent for the purpose of providing dispute resolution services in landlord and tenant disputes, as provided for by the Residential Tenancies Act 2004, as amended.

The complainant was reappointed to both panels following a recruitment competition in 2014.

The parties entered into written agreements in 2010 and 2014 in respect of the complainant’s appointment.  These agreements stated that the complainant was an independent contractor and expressly referred to the complainant not being an employee.

In 2019, the respondent advertised for the appointment of new members to a panel of adjudicators and a panel of mediators.  Following a public competition, the respondent informed the complainant in June 2021 that he would not be appointed to the panel of adjudicators or the panel of mediators due to his position on the order of merit.  The respondent further notified the complainant that the term of the 2014 Panel Members Agreement between the parties would expire on 4 July 2021.

The claim of unfair dismissal is in respect of the respondent’s termination of the agreement on 4 July 2021.   The complainant’s preferred redress is reinstatement.

Summary of submissions

The complainant has over a decade of experience as a decision-maker with the respondent.  The complainant was given an opportunity to reapply for the role of adjudicator and mediator in 2019.  The 2019 recruitment campaign was unsatisfactory however the complainant was not contesting the selection process.  The complainant went through the recruitment process, was successful in meeting the qualifying standard for reappointment and was deemed eligible for appointment by the interview board.  The respondent bears the burden of justifying why it did not appoint the complainant to the panels in 2021. In support of his unfair dismissal claim, the complainant relies on the candidate information booklet, section 6(6) of the Unfair Dismissals Act 1977, the numbers appointed to the panels, an increase in dispute referral and the demand for hearings.    The complainant should have been reappointed in 2021 after giving a decade of service.  There were many roles available and there was no statutory restriction on the numbers of mediators and adjudicators the respondent could appoint.  The complainant remains on the respondent’s reserve panel.

The respondent’s treatment of adjudicators and mediators as office-holders was disputed.  The Residential Tenancies Act 2004 (the “2004 Act”) does not refer to holding office.  In any event, holding office does not detract from the complainant’s case that he was an employee of the respondent. 

In circumstances where the respondent disputes the complainant’s employment status, the approach is as per the framework set out in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24. 

The complainant referred to the 2010 and 2014 Panel Members Agreement (the “PMA”) which governed the contractual arrangements between the parties, along with the respondent’s code of business conduct for mediators and adjudicators and data protection agreements.  The complainant relied on certain clauses in the PMAs, the respondent’s 2017 guidelines and parts of the 2019 candidate information booklet as evidence of mutuality of obligation and control.  Statements in the PMAs regarding the complainant’s employment status are not conclusive.  The respondent was obliged under the PMAs to offer cases to persons on the panels. 

The respondent was established under the 2004 Act and provided, inter alia, a virtually exclusive dispute resolution service in the area of private residential tenancies.  The remit of the respondent has expanded over the years and, as a result, the volume of dispute referrals has increased.  Whilst it may have been acceptable for the respondent to engage adjudicators and mediators as self-employed contractors in 2004, adjudicators and mediators have become fully integrated in the respondent organisation over the years.  The respondent has a virtual monopoly in the adjudication of residential landlord and tenant disputes.  The respondent provided ongoing training in an increasingly complex area of law.  There were restrictions on the external activities of panel members. Remuneration and fee structure was fixed and controlled by the respondent. Cuts in remuneration and the manner in which dispute referrals were managed by the respondent are highly significant features and supportive of the level of control on the part of the respondent.  Adjudicators and mediators work set hours, as determined by the respondent, and a working method was imposed.  The respondent intensively monitored work quality and operated a quality control system.  The respondent’s requirements in relation to submission of reports, drafting of determination orders, its code of business conduct and data protection guidelines all evidence the control exercised by the respondent. 

From December 2010, the complainant was allocated casework on a regular basis and the complainant was engaged in respondent business practically every week.  The continuous employment relationship is characterized by the PMAs. The complainant was under continuous contractual obligation to the respondent from December 2010. 

The quasi-judicial nature of the work does not refer to the adjudicator or mediator but rather to the respondent organisation itself; the respondent issues determination orders and it is the respondent’s mediation service.  It is the respondent’s determination order that is enforceable, not the adjudicator’s report per se. 

The complainant was summarily removed from the panel in 2021 in a manner that was inconsistent with the terms of the PMA.   He was not asked to resign but was given notice of termination on 4 June 2021 notwithstanding placement on the order of merit following the 2019 recruitment campaign.  The complainant’s dismissal was not in accordance with the candidate information booklet.  The respondent did not have to terminate the complainant’s PMA in 2021 where the complainant had placed on the order of merit.  A review of the competition process acknowledged the complainant’s complaints about many unsatisfactory aspects of the recruitment process.   It was submitted that this is relevant to the respondent’s discharge of the burden of proof.  The respondent has not allocated the complainant any work since 4 July 2021.

The complainant made extensive submissions in relation to the 2004 Act, the functions and obligations on the part of the respondent and the statutory procedure in relation to mediation and adjudication, which it was submitted were relevant to the legislative context and indicative of control. 

Summary of complainant’s sworn evidence

Payments from the respondent to the complainant were taxed under Schedule E.  The tax treatment of payments to the complainant was exactly in accordance with the Revenue Commissioner’s Statement of Practice SP-IT/1/04, which was referenced in the PMAs.  The complainant was taxed as an employee under the PAYE system.  USC and income tax deductions were made.  There were no PRSI deductions made as Class M PRSI applied.  The complainant never invoiced the respondent.  The complainant is registered for VAT but never charged VAT in his capacity as an adjudicator or mediator with the respondent.  The respondent never deducted professional withholding tax.  The complainant was paid a per diem rate of €616.00 and the respondent issued payslips to the complainant at his personal email address.  The payslips detailed gross pay, PAYE and USC deductions.  Payment for training was detailed separately in the relevant payslip.

Payroll was processed on a certain date each month and the complainant paid for work done by electronic funds transfer.  Hearing days allocated to the complainant were registered on the respondent’s Tenancy Management System (“TMS”) and the per diem rate was paid in the next payroll run following submission of all reports for cases heard on the relevant hearing day. 

The complainant signed a PMA, a fixed-term agreement, with the respondent in 2010.  The Code of Business Conduct formed part of the PMA.  The complainant was on two separate panels of mediators and adjudicators as per the terms of the PMA.  The complainant attended training in 2010 and was given a folder with copy of the respondent’s template reports, mediation agreements and guidelines.  All new panel members had to attend training, and the respondent did not offer work until training was completed. 

The respondent’s TMS became operational during the 2010 PMA.  The practice regarding allocation of hearing days under the TMS was for the complainant to receive a text message invite with details of date and venue for hearing cases.  The complainant could never indicate availability for certain days or weeks, rather the respondent picked the days and times and issued the hearing invite.  There was typically 2 to 3 weeks’ notice provided of a hearing day.  The invite had to be accepted within 24 hours by logging-in to TMS.  If the complainant did not reply within 24 hours, an automatic time-up response issued and the TMS would then move on to the next adjudicator or mediator.   If the complainant missed the timeframe for acceptance, he could email the case officer to let them know he was available.  Occasionally, the complainant would get an email asking if he was available to go to a particular venue; this was done outside of the TMS system.  The complainant regularly and consistently accepted invites.  There was never a time when the complainant did not receive invites.  Once the complainant accepted an invite for a hearing day, the case would appear on the complainant’s TMS, and the case file would be uploaded.  Before TMS, the respondent posted out the case files.  With TMS, everything was done electronically and there was no other way of accessing the case files other than through TMS. 

Initially there may have been two cases scheduled for the hearing day, but, following acceptance of an invite, a third case could be added to the day.  Following upload of the case file to TMS, the complainant would check that there was no conflict of interest and prepare for the hearing.  Under the PMA, the respondent required that 3 adjudication hearings per day, or 2 mediation hearings per day be conducted.  With the development and increase in mediations, the requirement increased to 3 mediation hearings per day.   

Telephone mediation services were introduced in late 2013 and two training days in respect of same were delivered on behalf of the respondent.   The complainant ultimately became an accredited mediator although this was not required by the respondent.  Telephone mediations were more commonplace than in-person mediations.  A dedicated email address at the respondent organisation was provided to the complainant when telephone mediations were introduced.  Following the Covid pandemic, the respondent moved to online adjudication hearings and the complainant was provided with an email address and online platform log-in details referable to the respondent organisation.  There were no in-person hearings from March 2020.  It is only now occasionally when an in-person adjudication hearing is required.

The complainant described how the respondent arranged hearing facilities and the complainant’s attendance at hearing venues, including the respondent’s Dublin headquarters, security measures and accessible areas.  The complainant selected availability for all hearing venues in 2010 and separate panels were created for each venue.   Over 10 years, the complainant travelled all over the country from where he was based.  The respondent booked the venue and then told the complainant where he was to go and provided meeting room details. 

The complainant needed a laptop and access to TMS to undertake the role.  He had his own laptop.  The respondent provided the complainant with a telephone and headset for telephone mediations.  

Adjudication reports had to be submitted within a certain timeframe.  This did not impact on an adjudicator’s independence but impacted on the outcome in that it restricted the time an adjudicator had to think about a decision.  If a case officer had any queries on the file, they would email the complainant.  Any clarification requests and notification of appeals were done through TMS.  There was an increase in clarifications following amendments to the 2004 Act, which amendments gave rise to more complex issues.  Fees were withheld until clarifications on reports were finalised.  The complainant referred to guidelines for adjudicators issued by the respondent in 2017.  The respondent’s executive has functions under the guidelines concerning service delivery and standards. These guidelines were part of the changes that occurred further to amendments to the 2004 Act.

The complainant described the quasi-judicial nature of the respondent organisation. As an adjudicator, the complainant writes up his report with a decision and drafts the determination order.  The adjudicator’s report issues to the parties.  There is a right of appeal to the Tenancy Tribunal.  If a decision/report is not appealed, the respondent issues the determination order.  The respondent may vary the determination order.  The determination order may be appealed on a point of law to the High Court.

If the complainant was unavoidably unavailable for a scheduled hearing, for example due to illness, he could not hand over cases to another adjudicator.  The case officer had to try to get someone to cover. 

The complainant was required by the PMA to adhere to service levels set out by the respondent.  The respondent’s exercise of control over the work of adjudicators and mediators was entirely appropriate and did not affect the independence of adjudicators and mediators.  The respondent insisted on and maintained certain quality standards.  The complainant was never told that he had to decide a case in a certain way.  The respondent exercised a sufficient level of control in that the complainant could not pick or choose cases, hearing days, hearing venues or times.  These were all arranged by the respondent.   The complainant referred to an email that issued from the respondent in 2017 to adjudicators and mediators in relation to drafting reports and determination orders and the making of reasonable and practical awards.

It was a shock in 2013 when there was a reduction in the per diem fee further to the Financial Emergency Measures in the Public Interest Act 2013.  The unilateral cuts implemented by the respondent are not consistent with self-employment and were equivalent to those that were applied to public servants.

The 2010 PMA concluded on 1 March 2014 and the 2014 PMA commenced on the same date.   The term of the 2014 PMA is significant as the complainant’s employment did not end on expiration of the fixed term rather the complainant’s contract was renewed on an indefinite basis on 14 February 2018.  The respondent advertised for appointment of new panel members to a panel of adjudicators and a panel of mediators in August 2019.  Covid and other issues caused problems for the recruitment process.  The outcome of the 2019 recruitment process was for 87 persons to be listed in order of merit for the role of adjudicator.  The complainant queried why no more than 40 were appointed to the adjudicator panel. 

The complainant was paid for a number of weeks to facilitate handover after he was given notice on 4 June 2021 of the termination of the PMA.  He was then locked out of TMS and had no further access.  The complainant had requested that the PMA not be terminated until a review of the outcome of the recruitment campaign concluded.  The review outcome was broadly satisfactory to the complainant.

The complainant agreed details of the offers of cases for adjudication made to the complainant in 2020 and 2021 and payment in respect of same.

Under cross-examination

The respondent did not give the complainant any background information regarding the respondent’s application of FEMPI reductions to panel members, and the different treatment in the application of same to staff members. The complainant was not informed or consulted about an unwinding of the FEMPI reductions and was never informed by the respondent that the reductions were reversed for some and not for others. 

The complainant’s first PMA expired in 2014, and the complainant applied through a recruitment competition for appointment to a further service level agreement.  The complainant did not query at that point why he was being asked to enter another service level agreement.  The complainant was placed on the order of merit following the 2014 competition and offered appointment.  The complainant confirmed various clauses in the 2014 PMA which referred to the complainant as an independent contractor, duration of the agreement and appointment not creating any entitlement to a guaranteed minimum number of referrals or cases from the respondent.  The complainant confirmed that it was always up to the respondent how it allocated work.  The complainant agreed that hearing invites issued to panel members and could be declined.  The complainant outlined how there were sometimes glitches in the system and where the complainant would directly contact the case officer to confirm his availability.  The complainant was also contacted by email or by a case officer where an adjudicator or mediator was required for a particular venue, or to fill in for another adjudicator at short notice.  The complainant confirmed that he was retained by the respondent on a non-exclusive, as required basis to provide services to the respondent and that he was free to do other work in his own time.  The respondent offered the complainant hearings, and the complainant was free to decline them.  The complainant did not accept that a clause in the agreement concerning standard of work and the requirement to rectify or provide clarification within a certain timeframe at the panel member’s own expense, without additional fee, meant that he was on hazard for the quality of his work.  The complainant maintained that the per diem rate included any clarifications required and that the complainant did not incur any expense in having to respond to clarifications other than time spent logging-in.  The amount of time spent by the complainant on clarifications was minimal. 

In relation to the 2017 guidelines for adjudicators, the complainant confirmed that the guidelines issued within the meaning of a clause in the PMA, but that there was a feeling that the guidelines did change the PMA.  The complainant referred to a particular clause of the guidelines as being new and a unilateral change to the agreement but subsequently agreed that that clause of the guidelines reflected a clause of the PMA.  The complainant agreed that the guidelines expressed changes in the legislation concerning the functions of the respondent Board and its Director. 

The complainant was told by the respondent that the Revenue Statement of Practice SP-IT/1/04 applied to his fee.  He could not comment on the respondent’s position that office-holders have tax deducted at source, irrespective of employment status.  The complainant was not involved in how or why a particular PRSI class applied to his fee. 

The complainant acknowledged that he was free to undertake other work or services at the same time as providing services under the PMA provided it did not interfere with or conflict with his obligations under the agreement.  He did not accept that a restriction in the agreement on advising any party in any hearing before the respondent for the duration of the agreement was a limited restriction.  From 2010, the complainant worked as a practising barrister, a lecturer and tutor.  The complainant is an accredited mediator.  He has not done mediation work but is available to do so.

Travel expenses incurred by the complainant while providing services under the agreement were minimal.  As an adjudicator and mediator, the complainant paid his own expenses. 

The complainant described a typical hearing day and what he would do if a case was withdrawn, or the parties did not attend for a case.  The complainant maintained that if he was booked by the respondent for a day, there was nothing else he could do that day and that he was under a contractual obligation to attend and be at the hearing venue.  The complainant did not accept that he was free to do other things in the event of a case being withdrawn or a no show. If a case was withdrawn, the complainant used the time to write up a report or to prepare for his next case. Nobody stopped the complainant from doing other things because he wasn’t doing anything other than working for the respondent when he was at a hearing venue because of the level of work and pressure to get work done. 

The complainant was asked about the respondent’s head office, access and security measures.  The complainant acknowledged that the majority of staff worked on certain floors in the building.  The complainant had never been on these floors and was not aware of a staff canteen on these floors.  When the complainant attended head office for hearings, he was given swipe access to the floor that had the adjudication hearing rooms and a kitchen.

The respondent did not assess the complainant’s performance or conduct annual reviews.  There was an intensive monitoring system of adjudication reports and a panel members forum.  The complainant was not obliged to attend the forum meetings but attended quite a few.

The complainant was not told why he had to sign a data sharing agreement and was not given any information or training regarding it. He recalled delaying in signing the data sharing agreement because he was hesitant about it.  The complainant referred to staff members having obligations under the respondent’s data protection policy.

The complainant did not accept that a review carried out in 2021 under Public Appointments Service Guidelines rejected the complainant’s complaints.  The complainant maintained that his complaints concerning the competition were acknowledged.  The complainant referred to acknowledgement in the report of his complaints that no credit was given at interview for his experience with the respondent or for performance at stages 1 and 2 of the recruitment process.  The respondent was aware that the complainant had raised issues about the recruitment process, and it should have taken this into account when deciding what to do with the complainant.  The issue is not whether the recruitment campaign was run properly or not, the issue is why the respondent decided to terminate the complainant’s agreement.  The recruitment process was unsatisfactory, and the complainant was successful in being placed on the order of merit. 

The complainant was asked about his aggregate income when he was an adjudicator and mediator and his aggregate income in the period after July 2021.  The complainant was also asked about efforts to mitigate loss.  The complainant did not know his aggregate earnings in 2019 and provided an estimate figure for earnings from teaching that year.  He confirmed amounts paid in respect of work as an adjudicator and mediator with the respondent from 2018 to 2021.  The complainant estimated that at least half of his professional time was spent on work for the respondent.   His income from working as a barrister varied every year.  From 2010, the complainant has lectured and tutored on a professional course, practised as a barrister and worked as an adjudicator and mediator with the respondent.  The complainant estimated that at least half of his income came from the respondent.  The complainant did not have work or income from the respondent from July 2021 onwards.  The complainant acknowledged that he has represented parties in disputes before the respondent since the PMA finished and has acted in other areas of law.   The complainant provided detail of other roles he had applied for after July 2021.  The complainant could not recall how much income he returned for 2023.  The complainant confirmed that he is working full time as a practising barrister.  After July 2021, the complainant made himself available to do more teaching and was more available for his practice as a barrister.   The complainant maintained that his earnings as a barrister were irrelevant as they had no bearing on what he could have earned from the respondent.  The complainant could have managed all three sources of income going forward.

Summary of submissions

There is no subsisting contractual relationship between the complainant and respondent.

By way of preliminary point, the complainant bears the burden of proving that he was an employee of the respondent and that he was dismissed.  Accordingly, the complainant is obliged to present his evidence first.  If the complainant successfully discharges those burdens, the respondent bears the burden of providing that any dismissal was fair in all the circumstances.  Case law and authority in support of the respondent’s position on the burden of proof was cited.  

The complainant was not an employee of the respondent within the meaning of the Unfair Dismissals Act 1977 (the “1977 Act”).   He was a statutory office-holder who entered into a contract for services to act as an adjudicator and mediator in the respondent’s statutory adjudication and mediation functions. 

The respondent was established under the Residential Tenancies Act 2004, as amended, (the “2004 Act”), which Act expressly distinguishes between members of staff of the respondent and adjudicators and mediators holding office.  Section 164 of the 2004 Act empowers the respondent to appoint persons as adjudicators and / or mediators.   Varying powers of, and procedures relating to, adjudicators and mediators are set out in the 2004 Act.  

The complainant’s contract for services was due to end on 28 February 2018 but was extended by agreement as the respondent was recruiting for the next panel of adjudicators and panel of mediators.  The complainant entered that recruitment competition and placed outside of the number adjudicators and mediators appointed by the respondent in June 2021 from the respective orders of merit.  The complainant’s contract for services with the respondent was terminated effective 4 July 2021.  The orders of merit remain live until 2026 and additional appointments to the panels may be made by the respondent if required.  The complainant was dissatisfied with his placement in the orders of merit and invoked his right to a review under the competition’s appeal process.  Independent reviews upheld the complainant’s ranking and the selection process.

The complainant was first appointed as an adjudicator and mediator with the respondent in 2010 following a public competition.  The parties entered into a contract for services, entitled Panel Members Agreement (“PMA”), on 8 December 2010, which agreement expired on 1 March 2014.  The complainant was reappointed as an adjudicator and mediator in 2014 following application and a public competition process.  The parties into a further PMA on 18 February 2014 and agreed, in February 2018, an extension to the term of that agreement.

The complainant was not obliged to accept work, and the respondent was not obliged to offer work. The complainant was offered work under two different scheduling mechanisms.  The complainant was free to accept, reject or ignore offers of hearings as he wished. 

The complainant’s remuneration was subject to deductions in line with guidance from the Revenue Commissioners and Department of Social Protection. 

The applicable legal test for determining employment status is as per the Supreme Court in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24.  The filter requirement of control is not satisfied on the facts of this case.   The statutory, contractual and practical arrangements evidence the respondent not having control over adjudicators and mediators.  Key elements in an assessment under the Karshan framework are the clear statutory framework for the office of adjudicator and mediator, as provided for in the 2004 Act, the terms of the written agreements, the factual matrix and practical work arrangements. 

The complainant was a statutory office-holder who provided services related to the holding of that office under a contract for services.  The complainant does not come within the scope of the 1977 Act.  Therefore, the 1977 Act does not apply to the non-renewal of the complainant’s appointment as adjudicator and mediator. 

Without prejudice to the respondent’s position on employment status and for completeness, the respondent is entitled to rely on the selection process managed by the Public Appointments Service and to regard that as a fair process.  The recruitment process was upheld on review under the relevant Code of Practice.

Reinstatement would be an entirely inappropriate remedy in this case.  Any compensation should be determined having regard to section 7 of the 1977 Act, including the obligation on an employee to mitigate their loss.

Summary of Ms Claire Diggin’s sworn evidence

The witness outlined her background working with the respondent and her current role as Deputy Director of Dispute Resolution.

The witness described the different physical working environment for employees and panel members or third parties. 

Scheduling of hearings for adjudicators is done through the Tenancy Management System (the “TMS”) since 2012.  Case officers manage cases across seven different regions.  Cases are batched together and the next panel member on the list for a region is issued an invitation to hear the cases.  The panel member has 24 hours within which to actively reject or accept the invitation.  If a panel member doesn’t respond to the invite, it is automatically voided.  There is no compulsion on a panel member to accept offers. Upon acceptance of an invite, a panel member will then be sent confirmation of the time and date.  Case officers within the respondent organisation do all the administrative work on the cases, for example uploading documents to the portal.  A panel member logs-in to the TMS and submits relevant information.  Since 2017, the respondent has a quality assurance unit that reviews adjudicators’ decisions from a consistency, clarity and enforceability perspective. 

The witness was an employee of the respondent when FEMPI reductions were applied in 2013.  The witness received an email, along with all other employees in the respondent organisation, advising how FEMPI would be applied.  The witness is aware that the respondent was told FEMPI applied to panel members following engagement with relevant government departments.  The witness benefitted from salary restoration, but this did not occur for panel members.

The witness’ understanding of the PMA was that the respondent was under no obligation to offer cases to panel members and that panel members were fully entitled to engage in other work.  The only restriction was in relation to representing parties before the respondent and where other work was in direct conflict to the panel member’s obligations under the PMA.

The respondent has never terminated a PMA for misconduct, breach of material obligation or persistent breach.

The respondent’s employees do not give an indemnity to the respondent.

Panel members provide their own laptop, and the respondent provides the platform for the panel members to deliver services.  In or around 2014/2015, when the respondent’s telephone mediation service was introduced, panel members who agreed to engage in the delivery of that service were provided with a headset, telephone and designated email address at the respondent organisation.  The rationale for this was the confidential nature of mediation.  It was not considered appropriate from an accessibility and confidentiality perspective for service users to communicate with panel members on their personal devices and accounts.

Legislative amendments in 2017 streamlined the process for issuing determination orders.  The 2017 guidelines address in a general manner work standards and conduct but are not an amendment to the PMA.  Apart from quality assurance measures, panel members are not subject to performance management.  The respondent’s employees are subject to performance management and other internal polices, such as data protection.

The witness was Head of Dispute Resolution at the start of the recruitment process in 2018.  The respondent engaged with the Public Appointments Service to undertake the process on its behalf.  The respondent was not directly involved in the process rather it received updates on its progress.

Following the recruitment and selection process, orders of merit were drawn up for adjudicator and mediator panels.  Based on service needs, there were initially 40 people appointed to the adjudicator panel and 20 to the mediator panel.  The complainant was not offered appointment to either of the panels as he ranked outside the numbers appointed from the orders of merit.   The complainant’s contract was terminated because new panels had been established, and contracts were offered to the top 40 and top 20 on the orders of merit.  The complainant’s existing contract was not continued because appointment to the panels is merit-based.  The respondent appointed additional panel members to the mediators panel in or around 2022 due to a greater demand for mediation in applications received.

The complainant never raised an issue about his status with the respondent from 2010 to 2021.

Under cross-examination

The witness confirmed her role is that of acting Deputy Director in the respondent organisation.   The witness described the employee executive and sectional structure in the respondent organisation.   The witness outlined how the respondent procures external support services and described operations and resourcing at the respondent’s call centre. 

In 2017, some of the functions of the respondent Board moved to its executive.  Clarifications required of panel members were perhaps more frequent from in or around this time because of the complexity of the legislation. 

The witness confirmed the accuracy of information contained in the respondent’s annual reports and acknowledged an increase in 2022 and 2023 on the amount spent on adjudicators’ fees and an increase in the numbers appointed to the panel of mediators.  If the respondent believes that there’s a need for more adjudicators and mediators, it can appoint more to the panels from the orders of merit. 

The respondent provided IT equipment to case officers to facilitate working from home.   Adjudicators and mediators are not given a laptop but provided with a telephone and headset if on the mediators panel.  Most employees benefit from an annual increment subject to satisfactory performance.  This is not applicable to adjudicators or mediators.  Restoration of panel members’ pay impacted by FEMPI is a matter for the Department of Public Expenditure & Reform.  It is not possible for an adjudicator or mediator to make more money by doing an extra adjudication or mediation on a given day.  The respondent is always reviewing panels to ensure adequate numbers of mediators and adjudicators to meet demand.  There is nothing to stop the respondent from making more appointments in line with the orders of merit if it believed it did not have an adequate number of adjudicators and mediators. There has been no decision made yet in relation to the 2026 recruitment campaign. 

The witness was asked about the allocation of hearings to adjudicators and mediators and explained how a variance in hearing invitations issued may be on account of the regions selected by panel members.   The witness did not have any input into the 2019 candidate information booklet for panels of adjudicators/mediators and could not say with certainty what was intended by certain sections.  The witness was not involved in developing scoring bands for the interview board in the 2019 recruitment competition, was not involved in overseeing the different stages of the competition or bringing candidates forward in the competition and was not on the interview board.  She had not previously seen confidential reports of the interview board.  The respondent has seen the need for adjudication hearings reduce over the years; over 50% of applications do not go to hearing.  If demand for hearings was not being met by the current adjudicator headcount, then this issue would be raised by case officers with the witness who would then escalate it to the Director of the respondent organisation.

This claim of unfair dismissal was referred by the complainant to the WRC on 1 October 2021.  The case was part-heard by another adjudication officer before being referred to me for adjudication following the previously mentioned adjudication officer’s recusal. 

The respondent submitted that the complainant was not an employee within the meaning of the Unfair Dismissals Act 1977, as amended, (the “1977 Act”).  Its position was that the complainant was a statutory office-holder engaged by the respondent under a contract for services as an adjudicator and mediator.  The respondent disputed both the complainant’s standing to refer a claim under the 1977 Act and that there had been a dismissal within the meaning of the 1977 Act. 

Without prejudice to the foregoing, the respondent disputed any unfair dismissal of the complainant.

Background

The respondent was established under the Residential Tenancies Act 2004, as amended, (the “2004 Act”).  Included in the respondent’s statutory functions and powers is the provision of dispute resolution services, namely mediation and adjudication, in the residential rental sector. 

By virtue of section 164 of the 2004 Act, the respondent may appoint mediators and adjudicators to carry out the functions assigned by the respondent in accordance with Part 6 of the Act.  A person may be appointed as both a mediator and an adjudicator and the respondent must form 2 separate panels comprised of those appointed as mediators and those appointed as adjudicators.  Section 164(5) of the 2004 Act provides for determination by the respondent of the terms and conditions on which a mediator and adjudicator stands appointed, subject to fees and expenses being determined and paid with the consent of the Ministers prescribed.  Section 164(6) is specific to the terms and conditions of adjudicators including such terms and conditions as are likely in the respondent’s opinion to secure the independence and impartiality of adjudicators.

The complainant was appointed as an adjudicator and mediator in December 2010 on a fixed-term contract terminating 1 March 2014.  The complainant was reappointed in March 2014 for a further fixed-term period of 4 years.  A stint by the complainant on the Tenancy Tribunal from in or around March 2015 to May 2017 did not involve the complainant’s resignation from the mediator or adjudicator panels. In 2019, the complainant was informed of a recruitment competition for adjudicators and mediators, which competition was being managed by the Public Appointments Service (“PAS”).  The three stages of the recruitment process took place in 2019 and 2020.  The complainant was advised in April 2021 of his placement on the order of merit for adjudicators and order of merit for mediators, which placement was 66th and 58th respectively.  The complainant was not offered a contract based on his placement on the orders of merit.  By letter dated 4 June 2021, the complainant was given notice of expiration of the 2014 contract on 4 July 2021.  The complainant exercised a right of review in relation to the recruitment process and contested, with the respondent and before the WRC, the respondent’s termination of his contract in July 2021.  The complainant has not worked as an adjudicator or mediator with the respondent following the respondent’s termination of the contract on 4 July 2021.

The Legal Framework

Section 8 of the 1977 Act provides for adjudication of an unfair dismissal claim referred to the WRC by an employee against an employer.

The following definitions from section 1 of the 1977 Act are relevant:-

“ ‘contract of employment’ means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;

…

‘dismissal’, in relation to an employee, means -

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;”

‘employer’, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), shall be deemed to be employed by the local authority;

…”

Section 6(1) of the 1977 Act deems a dismissal to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, regard may be had:-

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

Burden of proof and tendering of oral evidence

An issue arose at the outset of the hearing in relation to the burden of proof and the order in which oral evidence should be tendered.

The complainant submitted that the respondent should tender its evidence first as it bears the burden of proof under the 1977 Act, and that the case should be treated like any other unfair dismissal case.  Whilst submitting that neither party would be prejudiced by who goes first in evidence, the complainant also submitted that the burden of proof on the respondent under section 6(6) of the 1977 Act would be impacted should the complainant have to tender his evidence first.

Notwithstanding the burden on an employer under section 6(6) of the 1977 Act, the respondent submitted that in this case, where employment status has at all times been denied, the complainant bears the burden of establishing employment status and dismissal.  In such circumstances, it was submitted that the complainant should present his case first.  Case-law was cited in support of the submission that the legal burden is issue-specific and that the order of evidence should be determined accordingly.

Following a short break to reflect on the submissions of the parties and how the hearing should proceed, I ruled that the complainant should tender his evidence first and explained my reasoning as follows.  There are different burdens of proof within the 1977 Act dependent on the issue.  For example, in a constructive dismissal claim, where an employee bears the burden of proving that by the employer’s conduct it was reasonable or they were entitled to terminate their employment, or where an employee has less than one year’s continuous service and relies on the service exclusion in section 6(2A) or section 6(2B) of the Act.  The burden of proof under section 6(6) of the 1977 Act relates to justifying a dismissal and rests with the employer.    Section 8 of the 1977 Act, the enabling provision, provides for referral of a claim by an employee against an employer for redress for unfair dismissal.  Dismissal is defined in section 1 and involves termination or expiration of a contract of employment. In this case, where a contract of employment is an issue in dispute between the parties, I am satisfied that the complainant bears the burden of establishing that he was employed under a contract of employment within the meaning of the 1977 Act.  In my view it follows, or it is at least logical, for the complainant to tender oral evidence first, which evidence should address the issue of employment status along with the substantive nature of the claim.  I do not consider this to impact on the outcome of the unfair dismissal claim or undermine section 6(6) of the 1977 Act.  The burden shifts in the case if the complainant discharges the burden of establishing his employment with the respondent under a contract of employment.  The hearing will not be disrupted or constructed to signify shifting burdens rather the discharge of relevant burdens will be determined having regard to all of the evidence.  The complainant is not in any way prejudiced by giving oral evidence first. 

Employment status

This is a material issue in dispute between the parties and is central to the claim under the 1977 Act as the protections of the Act are available to persons employed under a contract of employment, which, for the purposes of the Act and on the facts of this case means a contract of service. The complainant asserts his employment by the respondent from 2010 until it was terminated on 4 July 2021.  The respondent contends that the complainant was an office-holder, engaged by the respondent under a contract for services. 

The complainant did not accept the respondent’s submission and characterisation of his role as an office-holder.  It is worth clarifying at this point that this issue does not dispose of the underlying, fundamental question as to whether the complainant was engaged under a contract of service.  This is acknowledged by the respondent by way of its submissions that it was not because the complainant was an office-holder that he did not fall within the scope of the 1977 Act, rather that the Act did not apply because the complainant was not employed under a contract of service.   

The complainant was appointed by the respondent as an adjudicator and mediator, as per section 164 of the Residential Tenancies Act 2004, as amended (the “2004 Act”).  The positions were established by the 2004 Act to carry out functions of a public nature, assigned by the respondent in accordance with the Act.   Section 165 of the 2004 Act provides for a process by which an adjudicator may be removed from the panel.  Such features correspond with Kenny J’s definition of the characteristic features of an office in Glover v BLN Ltd [1973] IR 388.

Both parties relied on the Supreme Court’s decision in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24 in support of their respective positions and the approach I should take in determining the question of employment status.  The complainant referred to the judgment of Ms Justice Bolger in Padraic Hanley v PBR Restaurants Ltd t/a Fish Shack Café [2024] IEHC 662 in support of his submission that the Workplace Relations Commission must apply the law as it currently stands and it being incumbent on public bodies to review contractual arrangements by reference to the Karshanframework. 

I am satisfied that the correct approach to the issue is as per the Supreme Court’s decision in Karshan.  The Supreme Court reviewed the case law and various ‘tests’ for determining a worker’s status, and reformulated and restated the approach to the question of employment status.

It is however worth noting at this stage that there is a material difference between the background to this case and that in Karshan.  Karshan was limited to a finding of employer/employee for the purposes of the relevant provisions of the Taxes Consolidation Act 1997 in respect of specific work engagements or rostered periods; it did not concern the workers’ employment rights.   The decision did not address the status of the worker in between rostered periods or the status of the umbrella contract under which the workers worked.   The structure of the contract between the parties in the present case was presented very differently to the structure of the contract identified in Karshan.  This stands to reason given the nature of the complainant’s case under the 1977 Act and that Act’s general application to employees who, at the date of dismissal, have at least 52 weeks’ continuous service with an employer. 

The complainant’s case was that he was employed by the respondent on a continuous and uninterrupted basis under a contract of service from 2010.    It was not the complainant’s case that specific work assignments and engagement under the 2010 and 2014 agreements constituted individual contracts but rather that his employment was continuous from 2010 under initially a fixed-term contract of service and subsequently under an indefinite contract of service. The complainant’s evidence was that he regularly and consistently accepted hearing invites and that there was never a time when he did not receive invites.  The complainant submitted that he was engaged in business for the respondent every week and that, under the contract between the parties, he was under obligation with the respondent irrespective of whether he was accepting cases. The complainant further submitted that having over 10 years’ service in employment with the respondent was a very significant factor in determining his claim of unfair dismissal. 

Whilst the parties agreed information before me in relation to the number of cases offered to the complainant in 2020 and 2021, I was not provided with specific detail of hearing dates or dates on which associated work was undertaken by the complainant for the respondent.  The parties did not identify periods between work assignments.

Based on the submissions of the parties and the restatement by the Supreme Court of the correct approach to the issue following its review of relevant case law, including the Court’s explanation as to how the law should be understood, I consider it appropriate to assess the complainant’s employment status by reference to the five-question framework in Karshan.

The Written Agreements

The respondent appointed the complainant as both a mediator and adjudicator in accordance with section 164 of the 2004 Act on the terms and conditions set out in written contracts entered into by the parties in 2010 and 2014.  

There are some minor differences in the 2010 and 2014 agreements, none of which are material to the question of employment status.  The focus of the parties in submissions and at the hearing was on the 2014 agreement; it is the relevant agreement having regard to the nature of the claim and the associated issues and was the agreement that governed the contractual arrangements between the parties.

The 2014 Agreement commenced on 1 March 2014 and was expressed to continue until 28 February 2018 unless terminated earlier by the complainant or otherwise in accordance with the 2004 Act and the terms of the Agreement.  The term of the Agreement was in fact extended.  The complainant submitted that the 2014 Agreement was renewed on an indefinite basis in February 2018, albeit that the respondent could terminate the agreement on the giving of 30 days’ notice.  The evidence does not support renewal of the contract on an indefinite basis in 2018.  The term of the 2014 agreement was extended by agreement of the parties in February 2018.   In this regard, I note the stated purpose of a letter dated 14 February 2018 was “to extend the Current Term such that it will expire the day falling 30 calendar days after written notification to you from the RTB, (which notice cannot be served until at least the expiry of the Current Term) (the “Extended Term”).”  The letter also confirmed the terms and conditions of the 2014 Agreement, save as amended by the letter, and that they remained in full force and effect.  The complainant confirmed acceptance of the extended term by signing and returning the 14 February 2018 letter.

The following is expressed at the outset of the 2014 Agreement:-

“The [respondent] in accordance with the Residential Tenancies Act 2004 (the “Act”) provides a dispute resolution service to landlords and tenants and is desirous of appointing persons to its panels of adjudicators and mediators (the “Panels”) for a period of four years.

The [complainant] has certain skills and abilities and provides mediation/adjudication services in matters of residential tenancy disputes.

The [complainant], as an independent contractor, is willing and hereby agrees to provide services to the [respondent] as set out herein and the [respondent] wishes to avail of the services of the [complainant], subject to the terms and conditions of this Agreement.”

Clause 3 of the 2014 Agreement states that the respondent appointed the complainant to the panels in accordance with section 164 of the 2004 Act, to provide mediation and adjudication services upon the terms and conditions set out in the Agreement.

Clause 3.2 of the Agreement provides as follows:-

“Appointment to the Panels and the terms of the Agreement do not create any automatic entitlement to a guaranteed minimum number of referrals or cases from the [respondent].  The referral of cases to the Panels shall be at the sole discretion of the [respondent].”

Under the 2014 Agreement, the respondent reserved the right to require the complainant, in providing his services, to conduct a number of cases in one day for a per diem fee of €616.  Clause 5.1 provides:-

“The [respondent] will pay to the [complainant] a fee of €616 per day for the provision of the Services, which will be paid to the [complainant] on receipt of full reports for all cases heard by the [complainant] on that day, which are satisfactory to the [respondent].  The fee may be subject to revision by way of an increase or decrease by the Department of Finance (or other government department/body as the case may be) from time to time and the [respondent] shall have no liability whatsoever to the [complainant] for any loss incurred as a result of any such revision.  Reviews may also include fee reductions or increased numbers of hearings per day.”

The Agreement set out at clause 3.3 the requirement, at the time, for panel members to conduct 3 adjudication hearings, or 5 paper based adjudications, or 2 mediation hearings per day.  Where the complainant did not respond to an offer of cases or declined the offer of cases, the Agreement states that the cases will automatically be referred to another panel member by the TMS system.

In relation to the payment of the per diem fee, the Agreement provides that this “will be paid to the [complainant] on receipt of full reports for all cases heard by the [complainant] on that day, which are satisfactory to the [respondent].

Clause 5.2 states that the respondent shall deduct PAYE and PRSI from the fee due to the complainant in accordance with Revenue Commissioners’ directions, and in particular Revenue Statement of Practice SP-IT/1/04, but that “this shall not in any way be deemed to create an employment relationship between the parties”.

Various clauses of the Agreement, including those referable to fee, status and indemnity, state that the complainant is not and/or will not become an employee of the respondent.

Clause 5.3 states that where the respondent is not satisfied with the standard of the work carried out by the complainant, including any reports prepared by the complainant, the respondent shall be entitled to withhold the fee, or part thereof, due to the complainant until rectification of the ambiguity or defect in the work to the respondent’s satisfaction.   Under this clause, the respondent also has the right to suspend referral of additional cases to the complainant pending rectification to the respondent’s satisfaction.

In relation to facilities and venue, clause 10 provides that the respondent shall arrange the venue for any mediation/ adjudication hearings and provide all background materials as provided to it by the parties to a dispute, and the complainant shall provide all other materials, equipment and facilities, including access to information technology facilities, necessary for the proper performance of the services.

Application of the Karshan Framework

(i)               Does the contract involve the exchange of wage or other remuneration for work?

As per the terms of the 2014 Agreement and the evidence of the parties that the complainant was paid the per diem rate for adjudication and mediation work he did for the respondent, the core requirement of exchange of wage or other remuneration for work was present and, as such, the agreement was capable of being an employment agreement.

(ii)             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?

It was common case that the complainant agreed to provide his own services as an adjudicator and mediator, and not those of a third party.   

As per section 164 of the 2004 Act, the respondent may appoint persons as mediators and adjudicators to carry out the functions assigned to them by the respondent in accordance with Part 6 of the 2004 Act.  The complainant was a person so appointed in 2010 and 2014 and was on both the panel of mediators and panel of adjudicators formed by the respondent in accordance with section 164 of the 2004 Act. 

It is clear from sections 93 and 164 of the 2004 Act that it is the respondent that arranges for a matter to be the subject of mediation or adjudication by a person appointed by it from the relevant panel.  The foregoing is reflected in clause 3 of the 2014 Agreement and it is also what happened in practice; if the complainant did not accept an offer of cases within the 24-hour timeframe, or declined an offer of cases, the respondent’s system automatically issued the offer to another panel member.   The schedules to the 2014 Agreement address declaration by the adjudicator or mediator of any conflict of interest to the respondent at the earliest opportunity so that another adjudicator or mediator may be appointed, if required.   This reflects section 101(2) of the 2004 Act which refers to the respondent appointing another person from amongst the panels of adjudicators or mediators to deal with the matter.

Clause 12 of the 2014 Agreement precludes assignment or transfer of any of the rights under the Agreement without the prior written consent of the other party.  The complainant’s evidence was that if he was unavoidably unavailable for a scheduled hearing, he could not hand over the cases to another panel member.

(iii)            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?

The parties were diametrically opposed in their submissions on the approach that should be taken to identify a sufficient level of control and on the indicators of control.  The complainant submitted that the level of control required at this stage must be a low threshold because of the description of this third filter as a “gateway”.  The complainant further submitted that it would be wrong to take a narrow or closed approach at this stage of the test.  The respondent strongly disagreed with the complainant’s characterisation of a low level of control at this stage and referred to extracts from Murray J’s judgment in support of its submission that there be a sufficient level of control, which is dependent on the circumstances. 

It is clear from Karshan that control at this stage of the inquiry does not determine the question of employment and further that control will vary depending on the nature of the employment.  The question at this stage of the framework is one of sufficient control in the sense of ultimate authority on the part of the putative employer. 

I refer to the following at para. 232 of the judgment where Murray J states:-

“What this ‘legally minimum’ element of control is, will depend on the nature of the employment, and in some cases it may indeed prove to be a wide gateway.  It is well and clearly expressed by MacKenna J in RMC:  the control involves a lawful authority to command ‘so far as there is scope for it’ (at p. 515).  The question is thus directed to whether there is a sufficient framework of control in the sense of ultimate authority, rather than the concept of day-to-day control envisaged by the older cases (see Montgomery v Johnson Underwood Ltd [2001] EWCA Civ. 318, [2001] IRLR 269 at para. 19).”

Also on the minimum level of control, Murray J held at para. 234:-

“But, if the putative employer does not enjoy the power to direct the type of work the worker is required to do, the relationship will not be capable of constituting an employment relationship (Minister for Education v The Labour Court and ors. at para 9.13, and para 102 of the reported judgment).  Similarly if the service is provided to a person who has no entitlement to prescribe times by which the work is to be done, no power to determine where or in what conditions the work is to be done or, within an enterprise, the persons who were to do particular work, it is difficult to see how this requirement could be met.  While in cases involving skilled work, it is to be expected that the employer will not have the right to direct how the work is to be done, the test requires that the employer retain some residual authority over it.”

It was submitted on behalf of the respondent that it had no power to direct, prescribe or determine the complainant’s work and that two very specific features of the complainant’s work militated against a finding of sufficient control.  Firstly, the respondent did not prescribe times at which the complainant was to hear cases or determine where the complainant would hear cases.   The respondent provided the complainant with an opportunity to hear cases; times were proposed by the respondent but never prescribed or determined because it was always open to the complainant to decline a hearing invite. Control only came into being because of the complainant accepting a mediation or adjudication invite.   Secondly, it was submitted that the complainant, on acceptance of an adjudication or mediation invite, was independent in the discharge of his role and function as an adjudicator or mediator.  This independence is enshrined in the 2004 Act and the complainant, in the exercise of his duties as adjudicator and mediator, was independent and not controlled by anyone else. 

In my view, neither of the two previously mentioned features properly fall to be considered at this filter stage of the framework based on the Supreme Court’s decisions in Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v Minister for Social Welfare [1998] 1 IR 34 and Karshan.  To assess control in the manner put forward by the respondent would involve taking a narrow and selective approach; it would disregard the nature of the complainant’s work, namely skilled work with a statutory basis, which it would not be appropriate or reasonable for an employer to closely direct.  Furthermore, the first feature is similar to the manner in which the demonstrator’s services were availed of in Henry Denny and is a sub-set of the reciprocal commitment to provide and perform work considered in Karshan. 

This stage of the framework is a filter mechanism in a framework that has as its overall objective assessment of all the relevant circumstances of a case.  The purpose of the filter stages is to eliminate arrangements that do not meet the legally minimum features of a contract of employment.  To assess control at this stage by reference to the fact that the complainant was not obliged to accept work offered would be to make it a sine qua non of a contract of employment, which, in my view, is not in line with either the Supreme Court’s decision in Karshan or in Henry Denny.  In this regard, I note from Karshan where Murray J., in an analysis of relevant case law, stated at para.71 in relation to the decision in Denny:-

“The decision can only be viewed as authority for the proposition that the absence of obligations to offer or to perform work were not necessarily inconsistent with the existence of a contract of employment of a continuing or ongoing character.”

A sufficient level of control is satisfied at this stage of the framework based on the respondent’s residual authority or control over the work done by the complainant.  The following features of the complainant’s work with the respondent are relevant in this regard.   

The respondent determined when and where mediation and adjudication hearings took place.  The respondent set a timeframe for response to the hearing invites issued to the complainant and other panel members.  On acceptance of a hearing invite, the complainant was required to conduct a number of cases on the day for a fixed fee, both the number of cases and the fee was determined by the respondent.  There were timeframes prescribed by the respondent within which the complainant was required to submit his report or an agreement after an adjudication or mediation hearing.   The complainant was required to prepare reports using standard templates provided by the respondent and to a certain standard. There were further prescribed timeframes within which the complainant was required to respond to any requests for clarification and make any required revisions on reports submitted.  The complainant was paid a fixed per diem fee, which the respondent could withhold if there were work standard issues or rectifications required.    The respondent had a right to suspend the referral of additional cases until any rectifications it required in work had been completed to its satisfaction.  The complainant was required to use the respondent’s TMS to prepare for a hearing and to submit relevant documentation after a hearing, including his report.  The complainant was subject to detailed service delivery requirements, the respondent’s Code of Business Conduct for Mediators and Adjudicators and the respondent’s guidelines on standards of conduct.  

(iv)            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.

Given my findings on questions (i) to (iii), I must now determine, on the factual matrix and the evidence before me of the working arrangements between the parties, whether the terms of the contract are consistent with a contract of employment or some other form of contract. 

The written agreement between the parties referred throughout to the complainant not being an employee and being engaged as an independent contractor.   The terms of the contract on status and the legal consequences of same are not determinative of the issue.  Regard should be had to all the circumstances of the contractual relationship between the parties, which circumstances include but are not confined to the terms of the contract.

The following evidence illustrated that the terms of the complainant’s contract and his work arrangements with the respondent differed to those of the respondent’s employees.

The respondent did not initially apply reductions under the Financial Emergency Measures in the Public Interest Act 2013 to the complainant or other panel members.  When the respondent’s employees had pay reductions reversed, a similar reversal did not happen for panel members.   The complainant was not subject to performance management for pay purposes.  The complainant used a laptop to access the respondent’s TMS platform and to undertake his work with the respondent, which laptop was provided and owned by the complainant.  The respondent provided the complainant with a headset, mobile telephone and dedicated email address on the respondent’s platform for security purposes when it introduced its telephone mediation service in or around 2014/15.    The complainant was expected, but not obliged, to attend training arranged by the respondent for adjudicators and mediator.  The complainant was not involved in the arrangement of hearings and had no contact with parties prior to hearings or on pre-hearing matters such as postponements.  The complainant did not have swipe access to the respondent’s Dublin premises and head office.  On arrival at the premises for hearings, the complainant was swiped by security to a floor of the building where hearings took place, and he was given a day pass to access certain areas on that floor.  

The respondent could withhold the fee payable to the complainant for his services if it was not satisfied with the standard of the complainant’s work and until rectifications were made to the respondent’s satisfaction.  Whilst the complainant’s evidence was that this was minimal and not time-consuming in practice, it involved doing work at one’s own expense, which is not consistent with a contract of employment.  The complainant entered into a data sharing agreement with the respondent in December 2018 which acknowledged the complainant’s obligations as a data controller and/or data processor.  The complainant’s evidence was that he was not told why he had to sign a data sharing agreement and did not receive any training or information in relation to the agreement.  Under the 2014 Agreement, the complainant agreed to indemnify the respondent, including against any claims or actions, as a result of certain actions on his part, including as a result of his acts, default or neglect in the provision of the services.

The respondent’s treatment of the complainant’s pay for tax purposes was based on the complainant’s status as an office-holder.  The respondent deducted PAYE and PRSI from the fee due to the complainant in line with Revenue guidance on the tax treatment of remuneration of members of State boards and other bodies.  The Revenue guidance on payments to statutory office holders in their capacity as such was for payments to be chargeable to tax under Schedule E and for tax, PRSI and USC deductions to be made at source under the PAYE system.  

The following arrangements are not consistent with a contract of employment and are arrangements that point to the complainant working for himself. 

The complainant was retained by the respondent on a non-exclusive, as required basis to provide services to the respondent.  The respondent issued hearing invites to the complainant.  It was not required to provide the complainant with a minimum number or any hearings, and the complainant was under no obligation to accept hearing invites that issued from the respondent or to undertake a minimum number of hearings.  The complainant was free to do other work and to offer the same services to other parties provided it did not interfere with or conflict with obligations under his agreement with the respondent.  The complainant was not permitted to advise any party in any hearing before the respondent for the duration of the agreement between the parties.  I consider these restrictions appropriate given the nature of the work involved.  The respondent’s inability to require the complainant to provide his services is strikingly unusual in the context of the contract of employment contended for by the complainant.  Based on agreed information before me, the complainant undertook in or around 64 adjudication hearing days in 2020 and in or around 55 adjudication hearing days in the first 6 months of 2021.  The complainant was not under any enforceable contractual or statutory obligation to undertake hearing days for the respondent.  In addition, the complainant could choose where to make himself available for work with the respondent.  These features are indicative of the complainant’s independence of the respondent. 

Related to the complainant’s independence of the respondent was the evidence before me as to what the complainant did if one or more of the cases assigned to him on a hearing day were cancelled.  Under cross-examination, the complainant maintained that he was under contractual obligation to attend and remain at the hearing venue and that he would use the time on writing up a report or preparing for his next case.  The complainant did not accept that he was free to do other things in the event of a no-show or case withdrawal.  In the first instance, I am not satisfied of any contractual obligation to attend and remain at the venue on a hearing day in the event of a no show or withdrawal of a case.  The complainant’s evidence of writing up or preparing for his next case were matters over which he had control, and the independence, to decide what to do.  The complainant may have chosen to remain at the hearing venue and use the time that had become available to him to make headway with writing-up or prepare for another case, but this is evidence of the complainant having the discretion to decide what to do with this time.  He could also have used the time to undertake preparation work for that week’s lectures or checked his emails, and this would have been without any repercussions in terms of his obligations to the respondent when a hearing was cancelled. 

From 2010, in addition to his work with the respondent, the complainant worked as a practising barrister and lectured on a professional course.  The complainant continues to work as a practising barrister and to lecture.  The complainant’s oral evidence was of at least half his income coming from the respondent organisation, although the complainant did not produce any documentary evidence in support of this and did not provide specific detail on his earnings from work as a barrister or lecturer.   The complainant’s evidence was that he could have managed all three sources of income going forward and his expectation was for his work as a barrister to increase year on year.  This illustrates the complainant’s enterprise in and around his work arrangements.  The complainant could arrange his business activities and interests as he saw fit.  The complainant was free to avail of business opportunities and to maximise profit from his business interests on his terms, including his work with the respondent.  The complainant could decide whether to avail of opportunities with the respondent or not.  He could determine and manage his time and commitment to, and consequently income from, the respondent. 

On balance, having regard to all of the circumstances, the factual matrix and evidence before me relating to the work arrangements between the parties, I conclude that the complainant was not at any time material to this claim employed with the respondent under a contract of service as mediator and/or adjudicator.  The complainant was an independent contractor, undertaking work with the respondent under a contract for services.  

(v)              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.

I have referred previously in this decision to provisions in the 1977 Act referable to locus standi to refer and maintain a claim under the 1977 Act.

I was referred by both parties to various provisions in the 2004 Act.  My findings at (iv) above are supplemented by the provisions of the 2004 Act on the appointment of staff of the respondent (section 162), appointment or engagement of mediators and adjudicators (section 164) and the distinct provision for staff of the respondent and mediators or adjudicators in the matter of indemnification (section 168).

Section 162(4) provides as follows:-

“The staff of the Board shall –

(a)   be paid out of moneys available to the Board,

(b)   perform such functions as determined from time to time by the Director, and

(c)    hold office or employment for such period and upon and subject to such terms and conditions as may be determined from time to time by the Director, with the consent of the Minister and the Minister for Finance.”

This is in contrast to section 164 which enables the respondent to appoint such and so many persons as mediators and adjudicators to carry out the functions assigned to them by the respondent in accordance with Part 6 of the 2004 Act.  The consent of the relevant Ministers is required in relation to the respondent’s determination of fees and expenses payable to mediators and adjudicators but other terms and conditions, including the period of appointment, are determined by the respondent.    Section 164(8) expressly provides that neither the Civil Service Commissioners Act 1956 nor the Civil Service Regulation Acts 1956 to 1996 apply to a mediator or an adjudicator. 

It was submitted by the respondent that it was manifestly the intention of the Oireachtas in enacting the 2004 Act that adjudicators and mediators were to be something other than members of staff of the Board.  The 2004 Act distinguishes between the appointment of staff of the respondent and the appointment of mediators and adjudicators, including the determination of their respective terms and conditions of employment.  As I see it, the 2004 Act is not conclusive on the question of employment status of mediators and adjudicators, rather the distinction in the statutory provisions concerning persons appointed as members of staff and persons appointed as mediators and adjudicators supplement my findings at (iv) above.  

Conclusion

I find that the complainant was not employed by the respondent at any time material to this claim under a contract of employment as an adjudicator and / or mediator.  In such circumstances, the complainant does not have the locus standi to pursue the claim under the 1977 Act referred to the Commission, and I must conclude that the complainant was not unfairly dismissed.

For the reasons set out above, I find that the complainant was not unfairly dismissed and is not entitled to redress under the Unfair Dismissals Acts 1977-2015.

Unfair dismissal – Employment status – Office holder - Contract of service - Contract for services