FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : VALENTIA TECHNOLOGIES LTD (REPRESENTED BY O’MARA GERAGHTY MC COURT SOLICITORS) - AND - JOSEPH O ' LOUGHLIN (REPRESENTED BY R BRACKEN & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appealing Against A Rights Commissioner’S Decision R-056501-Ft-07/Mmg
BACKGROUND:
2. The worker referred his case to the Labour Court on the 3rd September, 2009, in accordance with Section 15(8) of the Protection of Employees (Fixed-Term Work) Act, 2003. The following is the Court's determination:
DETERMINATION:
1) Appeal:
The Complainantappealed the decision of a Rights Commissioner in accordance with Section 15 (1) of the Protection of Employees (Fixed-Term Work) Act 2003. The Labour Court heard the appeal on 18th March 2010. The parties will be referred to throughout this determination by their original designation before the Rights Commissioner namely Complainant and Respondent.
2) The Substantive Issue:
a) The Complainant, who was not represented, stated that he entered into a contract for services with a third company on 7th October 2006. That contract was taken over by the Respondent and the Complainant operated in accordance with the terms of that contract until it expired on 6th April 2007. No new formal contract was discussed in April 2007.
b) The Complainant invoiced the Respondent through a third company that had hired a fourth company to administer its payroll and related matters. He was formally an employee of the fourth Company and his tax and PRSI payments were administered accordingly.
c) The Complainant was under the impression that he would be made a permanent employee of the Respondent after the expiry of the initial contract. As there was no communication from the company regarding the terms of their future relationship the Complainant wrote to the Respondent on 4th May 2007 seeking to commence a discussion about being made permanent. Shortly afterwards his health deteriorated and he asked the Respondent to accommodate him by altering his working week to accommodate his reduced capacity. The Respondent agreed to this. By letter dated 3rd August, the Respondent offered the Claimant, a three month contract for services on the same terms as the original contract. The Complainant wrote back to the Respondent on 8th August indicating that in the absence of a contract from April onwards he considered himself an employee of the Respondent. He followed this up on 14th August with an email to the Respondent stating that he “believe(d) that legally I am an employee”. The Respondent wrote to the Complainant on 16th August advising him that he had been engaged as a contractor providing services to the company on an invoice basis. It advised that it did not have any confidence or trust in working with the Claimant into the future and it gave him one month’s notice of termination of the contract to take effect on 16th Septemeber 2007. At that point his contract was terminated.
d) The Complainant asked the court to find that he was an employee of the Respondent on a series of fixed term contracts and that he had been dismissed in contravention of Section 13 of the Act. He sought reinstatement to his previous position or in the alternative compensation.
e) The Respondent, which was represented by Mr Ciaran O’Meara of O’Meara Geraghty McCourt Solicitors, told the Court, through their representative, that the Complainant was never an employee of the Company. At all times he was engaged as a contractor, invoiced for his services and otherwise behaved in all respects as a contractor. The Company at all stages intended to meet this business need through the use of an outside contractor and never intended to offer anyone direct employment. When it became clear that this is what the Complainant was seeking they terminated the contract without delay.
f) In light of the fact that the Complainant was never an employee of the company and was never employed on a fixed term contract he did not come within the scope of the Protection of Employees (Fixed-Term Work) Act 2003.
3) The Courts Findings:
a) Section 2 (1) of the Act contains the following definitions:
(i) “Contract of employment” means a contract of service whether express or implied ….”
(ii) “Employee” means a person of any age, who has entered into or works under ….. a contract of employment …”
Section 13(1) of the Act provides:- “An employer shall not penalise an employee –
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).
- “An employer shall not penalise an employee –
b) Having considered the submissions of both sides in this case the Court is satisfied that the Complainant did not, at any material time, hold a “ contract of employment” with the Respondent. In addition the Court is satisfied that the Complainant was not, at any material time, an employee, on a fixed term contract or otherwise, of the Resopndent. Accordingly the Court holds that the Claimant does not come within the scope of the Act and disallows the appeal. The Court further concludes that as he did not come within the scope of the Act and was not at any material time an employee of the Respondent, Section 13 (1) (d) does not apply.
4) Determination:
a) The Court affirms the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Brendan Hayes
14th April,2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.