ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00003976
A Tech Company
Complaints and Dispute for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 8 November 2016 and 16 January 2017
(This Case is Conjoined with ADJ 5594 )
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Location of Hearing: Radisson Blu Hotel Cork
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991, section 27 of the Organisation of Working Time Act, 1997, and Section 13 of the Industrial Relations Acts 1946 – 2015, following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
This case is conjoined with ADJ 5594. The Complainant commenced work as an Independent contractor on 11 November, 2014. She has submitted three claims associated with her employment with the respondent which is disputed. The complaint was lodged on 21 June 2016.
1 The complainant submitted that she was wrongly classified as an Independent contractor and was instead an employee.
2 The complainant submitted that she had been deprived of annual leave , social security benefits and public holidays .She claimed payment for 20 days annual leave and 9 public holidays.
Summary of Complainant’s Case:
The complainant is a Dutch National who commenced work as a Data Analyst on 11 November 2014.She was described as a self employed contractor .She was based on an associate company site and reported to the respondent representatives .She clocked in and worked a set working week of 40 hours .Her lunch break was reduced by half an hour in 2015.Changes were communicated by email. She worked overtime.
The complainant contended that her work was continually tested by her manager and she was fully engaged in the social aspect of the work environment .She followed the respondent policies and this was her sole employment.
She contended that she was in fact an employee and not an Independent contractor. She submitted daily reports and spreadsheets and did not provide her own tools .The complainant submitted that she was employed by the respondent but under the daily control of the associate company. She has discussions with the respondent in December 2015 surrounding “employee status “Some progress was made and she was offered a fixed term contract in June 2016. She sought clarification on clause 24 :
The complainant contended that she witnessed inequality as pay rises were given to some staff and others secured promotion .The complainant sought transparency. She stated her dissatisfaction with the confusion she experienced when being asked to work as an employee but paid as a Contractor and when she sought to work as a Contractor, this was not permitted by the respondent.
The complainant sought compensation for the non payment of annual leave and PRSI by the respondent. She was awaiting a Determination on her employee status from the SCOPE section of the Department of Social Protection.
The complainant left the respondent employment in August 2016 (The circumstances surrounding this are incorporated in the conjoint claim lodged on 10 October 2016).
CA-00005396-001 Industrial Relations Dispute :
The complainant sought compensation for her mis categorisation as an Independent Contractor by the respondent when she should have been recognised as an employee in receipt of associate benefits.
CA -00005396-002 Payment of Wages Complaint
The complainant submitted that she was employed to work a 35 hour week. On the 9th August, 2015, this was unilaterally increased to 37.5hrs without extra pay .She had 44 weeks of lost pay resulting in €2,464.00 loss.
The complainant submitted that she had not been paid for 20 days of annual leave and 9 public holidays. Her daily rate was €128.00 per day .She submitted that her loss amounted to €3,712
Total claimed : €6,176.00
CA -00005396-003 Organisation of Working Time Act complaint.
The complainant submitted that she was owed €3,712 for 20 annual leave days and 9 public holidays as an employee.
Summary of Respondent’s Case:
The complainant was engaged by the respondent on a contract for service basis in November 2014, This was part of a Project, and on a contract for service with an associate company .She agreed to an extension in her contract from 30 September 2015 to 30 September 2016 and indicated her satisfaction with the opportunity to remain with the respondent.
The complainant, along with other independent contractors expressed an interest in converting to fixed term employment. The respondent offered the complainant fixed term employment on 28 June 2016.
CA -00005396-001 Industrial Relations Dispute
The respondent rejected the complainant’s contention that she was an employee and submitted that the complainant had not submitted details of a Trade Dispute.
The respondent submitted that there was duplication in all three complaints lodged on 21 June 2016.
CA -00005396-002 Payment of Wages Complaint
The respondent disputed that the complainant was an employee and pointed to the date of alleged contravention as 9 August 2015. The respondent relied on a High Court case of HSE V Mc Dermott  IEHC 331 and submitted that the complaint is outside the statutory time limit.
CA-00005396-003 Organisation of Working time Act Complaint :
The respondent submitted that the complaint related to an infringement since 11 November, 2014 and submitted that the claim is out of time and should be dismissed.
Findings and Conclusions:
I have found that based on the evidence before me of the reality of the employment relationship, the complainant can properly be regarded as an employee of the respondent from November 2014.
Section 13 of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.]
I have considered the presentations made by both parties and I have read both parties comprehensive written submissions.
This claim is related to a large cohort of similar complaints lodged with the WRC, involving the respondent in 2016 .I adjourned the complainants hearing in November 2016 to facilitate a conjoint hearing into a latter day complaint ADJ 5594.The complainant lodged her complaint with the assistance of her Union and was represented by the Union at the hearing on 16 January 2017. During mid February, 2017, the complainant submitted a copy of her Determination from the SCOPE section of Department of Social Protection.
“ It has now been accepted by ( The respondent) that your engagement with them was under a contract of service ( i.e. employee status ) ….This involves the collection of outstanding PRSI “
This information was copied to the respondent and no further points were raised.
I have carefully considered the facts as raised by the parties in this case. It was clear that the contract for service raised with the complainant in November 2014 had all the hallmarks of a contract befitting an Independent Contractor. I accept the evidence of the respondent that the project expanded with the associate company on broader scale than they had ever anticipated and it took some time before the attention was drawn to categorisation of the contractors.
However, I am persuaded by the account of the “reality of the employment relationship” as advanced by the complainant. She detailed a true employment relationship in line with the primary decision in these cases ADJ 4297. I note that the complainant was pro-active in chasing employee status late in 2015.
I find that her complaint is well founded and uphold the complainants claim for employee status ; however, the complainant no longer works with the respondent. The most practical recommendation open to me in this case, given the timing of the Dispute, is to require the respondent to pay the complainant €3,000 in compensation for the miscasting of the complainant as an Independent Contractor, when the reality of the employment relationship clearly dictated that she was an employee.
This award is to be paid within 4 weeks in the event that the parties accept this recommendation.
Section 41 (6) of the Workplace Relations Act, 2015 provides:
Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
Section 41 requires me to make a decision in accordance with Schedule 6 of the Act.
Section 6 of the Payment of Wages Act requires me to make a decision in the case. The complainant refers to an undisputed unilateral increase in the working week in August 2015.The working hours increased from 35 to 37.5 hrs without a commensurate increase in salary. I accept the evidence of the complainant that there was no mention of working hours on the contract for service operational from November 2014. I understand her sense of grievance at the increase in hours. The question of seeking employee status was first raised by the complainant in September 2015.
However, I am bound by the parameters of Section 41(6) of the Act as outlined above. The first aspect of the complaint refers to a date of contravention of 9 August 2015 in respect of the weekly increase of 2.5 working hours .Given that the complaint was first lodged with the WRC on 21 June, 2016.I must find that I do not hold the jurisdiction to hear this complaint as it was lodged outside the statutory time limits .No argument was advanced on reasonable cause.
The second aspect of the complaint refers to unpaid annual leave and public holidays and was also lodged on 21 June, 2016. This claim is mirrored in the subsequent complaint lodged under the Organisation of Working Time Act, 1997 and I propose to deal with it under that piece of legislation. I find that this aspect of the complaint is not well founded.
3 CA -00005396-003 Organisation of Working Time Act complaint.
The complainant is claiming payment for annual leave and public holiday for the annual leave years of.
April 2014- April 2015
April 2015 –April 2016
April 2016 -21 June 2016
Section 2 of the Act provides that “leave year” means a year beginning on any 1st day of April;
Section 19. — Entitlement to annual leave.
(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
By application of the time limit provided for in Section 41(6) of the Workplace Relations Act, the cognisable period for the purpose of this claim is confined to the six month period ending on the date of presentation of the complaint to the WRC, i.e. 21 June 2016, therefore the cognisable period covered by the claim is the six month period from 22 December 2015-21 June 2016.
I have also considered that both parties were under the impression that the presiding contract was that of an Independent contractor up until the planned changes were shared in July 2016.
I find that the complaint is well founded and I order compensation to be paid to the complainant on a “just and equitable “basis of € 2176.00, to cover annual leave and public holidays in the cognisable period .
Dated: 14th June 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Contract for / Contract of service.