EMPLOYMENT APPEALS TRIBUNAL
Provident Financial Plc T/A Provident Personal Credit Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 28th January 2016 and 16th May 2016 and 17th May 2016
Claimant: Ms Fidelma Carron, SIPTU, 8th Floor, Liberty Hall, Dublin 1
Respondent: Ms M.P. Guinness, instructed by: Ms Julie Galbraith, Eversheds, Solicitors, One Earlsfort Centre, Earlsfort Terrace, Dublin 2
In the first instance, Counsel for the respondent made an application that the Tribunal did not have jurisdiction to hear the matter because the clamant was not an employee as defined in the Unfair Dismissals Act 1977, an independent contractor.
PH, the Area Manager for the respondent gave evidence, he had previously worked in the claimant’s role as an agent then a development manager before becoming the Area manager. As a self-employed agent PH was provided with cash (€100-€1000) and contacts by the respondent. After a loan (average of €700) was provided to a customer it was his role to collect the repayments on a weekly basis over 26 or 52 weeks. The respondent sets the targets. There were no set hours. PH had another job at the same time so he did his work for the respondent in his free hours. PH never had someone deputise for him.
He had a least one weekly meeting with the respondent, he left all the loan paperwork with the office. He got a new set of loan contacts each week. In order to increase his earnings PH sourced his own loan customers. There had been an agreement in place that the respondent would pay €200 to the agent if they did not reach that level in commission; this agreement ceased in 2008/2009.
As an agent PH was paid commission only; every October PH presented the commission statements to Revenue and paid his own tax accordingly. He never received sick pay or holidays. He was required to have access to a car but no financial support was provided for the car.
The application form for the position very clearly states that the agent role is not that of an employee and that you are liable to pay your own tax. It is possible for an agent to get someone to deputise for them; the claimant did get a deputy agent form signed although he did not use it.
The claimant’s manager (ST) did not have the authority to employ the claimant; the claimant was not the deputy manager – no such position exists. As Area manager PH has 2 development managers reporting to him who in turn look after 19 agents.
Among other reasons, if an agent breaches regulatory requirements their agency can be terminated by the respondent. Agencys can also be suspended.
CC (development manager) told the Tribunal that his main role was to develop business in the area and that he dealt with the agents on a weekly basis. They (the agents) came into the office on Monday mornings, completed administration work and got collection lists. They also called to gets their clips on a Wednesday of Thursday. Agents were free to call to customers if when it suited them and some had other employment, including other full time work.
He stated that the agents were paid commission on their collection amounts so any financial risk was theirs. They also could/would have deputy agents working for them and could decide how the pay their deputy, it had nothing to do with the respondent once the deputy was checked and cleared under financial regulations. Agents also carried loan request forms and could issue loans up to a certain mandate, they also did their own lodgements.
Asked about the claimants additional duties CC said that he was a trusted person who would have had the cheque book if management was away from the office. He also had keys to office (as did others) but this practice has now changed. The claimant might have done lodgements for others but that was between him and them.
MS (head of compliance) gave evidence of the E.U. regulations involved for the respondent and PH (supervisor in another branch) gave evidence of the respondent practices in his area.
EM (the current area operations manager) gave evidence of being asked to work in the North- West in November 2012, a time when the management team were suspended. She told the Tribunal that she didn’t see the claimant operate any differently to anybody else, he was a self- employed agent.
UT, the claimant’s former colleague and office manager, told the Tribunal that he took a position in 2003 to set up the respondents business in the North West. He gave evidence of the practices that were adopted and said that he had hired the claimant. The claimant carried out additional duties from him as he was a competent, honest and trusted person who could hold the fort when he attended meetings etc.
Asked if the claimant had direct access (password) to the computer UT said “no” but it would be left open for the agents to use. The claimant decided when he would call to his customers, used his own car, petrol, insurance, phone, and was responsible for the money he collected until it was lodged. UT also confirmed that income tax and PRSI was the claimants own concern as was the case with his deputy agent.
DS told the Tribunal that he had a customer base of up to 400 people. When he began work he was provided with a flat rate of €200 per week until he got a customer base that achieved that amount of commission. He always had to collect his (clip) from the office on a Thursday and worked with his deputy(who had to be approved by the respondent) on a Thursday and Friday. He spent time in the office helping other colleagues, providing administrative duties and cover for his manger. He said that targets were set by management and if any customer was having difficulty in paying a waiver could only be done by his manager. Agents might call to his house on a Saturday night and he would do their banking on a Monday morning.
Asked if he applied for the position of “self employed agent” he confirmed that he did. He also confirmed that his contract specified that he was not an employee. DS said that he did not get holiday pay or sick pay, he paid his deputy himself and when some of his money was taken he was held responsible.
The Tribunal considered the evidence adduced taking into consideration all the factors relating to the working relationship between the claimant and the respondent.
The Tribunal noted the following facts which emerged during the hearing, which are now set out in summary hereunder, some supportive of the contention that the claimant was engaged in a contract of service and others supportive of the claimant having a contract for service.
(pro. Contract of service)
- The claimant began on a base wage of €200 per week
- He had a limited mandate for loan approval
- Targets were set by management
- Any deputy he employed had to be approved by the respondent.
- He had to rely on his manager for waivers and there were some restrictions on his hours of work(no Sundays or after 9pm)
(pro. Contract for service)
- The wording “self employed agent” is expressed in the contract.
- The claimant did work on hours and days of his choice
- His salary was commission based and could be higher or lower depending on his efforts i.e. his control.
- He provided his own car, phone and deputy agent (nothing was supplied by the respondent.
- He paid his own taxes and had no financial risks if loans unpaid (except for commission earnings).
- He would delegate his work to a deputy.
- The control exercised by the respondent over time arose from its obligation under Central Bank regulations and nothing other than this.
- He could work elsewhere
Looking at the picture as a whole, and mindful of the legal principles set out in previous case law, including Minister for Agriculture –v- Barry and Castleisland Cattle Breeding Society - v -Minister for Social and Family Affairs, each case must be considered in light of its own particular facts.
On balance, the Tribunal in this case determines that the working relationship between the claimant and the respondent was one of a Contract for Services and that the claimant was working as an independent contractor.
The Tribunal therefore does not have jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007 or the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal