EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1595/2014
RP889/2014
MN790/2014
CLAIMS OF:
Mary Enright
against
Provident Personal Credit Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Ms M. Sweeney
Mr F. Dorgan
heard this claim at Limerick on 12th May 2016
Representation:
Claimant: Philip J. Culhane & Co., Solicitors, The Mall, Glin, Co. Limerick
Respondent: Ms Julie Galbraith, Eversheds, Solicitors, One Earlsfort Centre, Earlsfort Terrace, Dublin 2
Background:
A preliminary issue arose as to whether the claimant was an employee.
The respondent held that the claimant was engaged by them under a contract for services and therefore was not an employee for the purposes of the above named Acts.
However the claimant held that although she had worked for the respondent under a contract for services that she should in fact have been treated as an employee and therefore was claiming that she was entitled to the protection of the above named Acts.
Determination:
A Preliminary question for decision is whether the Claimant has legal status as an employed person to maintain a claim for Unfair Dismissal and related claim for Minimum Notice and in the alternative a Redundancy claim against the Respondent.
The Claimant’s case is that she was recruited as an employee, under the supervision and continuing instruction of the Respondent. The respondent asserts that the Claimant was recruited as an independent or self employed agent of the respondent and that her self employed status was expressed in the documents detailing her service with the respondent. This status could also be inferred from the relationship between the parties and most importantly from the financial autonomy of the Claimant in the discharge of her duties. In particular, the claimant’s right, exercised throughout her relationship with the respondent, to take on, subject to the latter’s approval, deputies and remunerate them is indicative of her self employed status. In the view of the respondents’ counsel, the right of substitution - and its unimpeded exercise - was critical in the determination of the claimant’s self employed status. The tribunal heard evidence that the Claimant recruited and paid at least three deputies. The claimant herself remunerated from her own resources deputies or sub agents. The need to approve deputies or sub agents arises from the legal and regulatory functions of the Central Bank and in the view of the Tribunal cannot be seen as a form of control or supervision of the Claimant’s duties. In this respect the oversight exercised over the Claimant was no different to that exercised over the Respondent’s 630 other agents in the Republic of Ireland.
The Respondents’ Divisional Risk Manager stated in his evidence to the Tribunal that agents are allowed other employments outside of their obligations to the Respondent and that many of the agents held another job.
The claimant paid her own taxes and did not claim or receive holiday pay. The claimant provided her own car and paid for the use of her own mobile phone.
In evidence to the Tribunal, the claimant admitted she never raised with Mr F, her immediate manager, any question or claim concerning a status as an employee in her seven years of service to the Respondent. These matters are indicative of a contract for services where the claimant was not an employee.
In the view of the Tribunal, the claimant was, subject to financial and regulatory controls, free to conduct and “grow” her own business outside of the control of the respondent. The tribunal therefore finds she was not an employee of the Respondent and accordingly the Tribunal refuses jurisdiction to hear these claims under the Unfair Dismissals Acts, 1977 to 2007, the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and the Redundancy Payments Acts, 1967 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)