ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Doctor | A Public Service Provider |
Representatives |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00004314-001 | ||
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Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant is a medical practitioner in private practice who also undertakes work for the respondent. In making this claim for a statement of her statutory terms of employment the complainant seeks to establish initially that she qualifies under the Act to be given that statement as ‘an employee’, which status is disputed by the respondent. This is one of a number of complaints by colleagues of the complainant who say they are in the same or a similar position, and which will be heard separate from this. I have already issued a decision in a very similar case and where appropriate here on the particular facts of the case I have followed my reasoning in that case (ADJ 19368). |
Summary of Complainant’s Case:
The complainant is a medical practitioner in private practice who also undertakes work for the respondent. In making this claim for a statement of her statutory terms of employment the complainant seeks to establish initially that she qualifies under the Act to be given that statement as ‘an employee’, which status is disputed by the respondent. This is one of a number of complaints by colleagues of the complainant who say they are in the same or a similar position, and which will be heard separate from this and in respect of one of whom a decision has already issued (ADJ 19368). The complainant commenced working with the respondent on December 5th 2013 as an assistant programme director in its training programme initially on a seen month contract and has been in continuous employment since. Despite a commitment to do so the contract has not been reviewed and continues in force. She works a six-hour shift, every Thursday; the teaching session is sometimes preceded by a meeting with her fellow teachers. The teaching session always begins promptly at 10 am. She is on the respondent‘s payroll system and is paid fortnightly from the payroll system. She has made superannuation contributions. She has had three periods of paid maternity leave in 2014, 2016 and 2018. She has also been approved for parental leave. The complainant says that the employment relationship meets the criteria that define a contract of service. She must undertake the work set out for her and may not make herself unavailable for work without sanction or repercussion, there is a continuing obligation on the respondent to make work available to her and there is a mutuality of obligation in the employment relationship. The complainant has no discretion in relation to how she conducts the respondent‘s business, including when and how to perform any particular assignment. She may not delegate or outsource her functions and she is fully integrated into the respondent’s business for that part of her work, notably in respect of where she carries out her work, although the timing of when she delivers the work may vary depending on the availability of premises. Also, tax and related matters are consistent with an employer/employee relationship. She is required to make payments under the public service pension levy. The complainant makes returns in respect of her self-employment arising from her private practice but her income from the respondent is fully taxed at source. The payments she receives from the respondent are not part of her practice income. She receives holiday and sick pay. She does not supply any equipment or materials; all of which are supplied by the respondent. In respect of the respondent submission regarding the application of revised time limits the complainant relies on the decision in ADJ-9820 in which it was held that the failure to provide a statement of the terms of employment is a subsisting contravention and where the statutory statement is not provided there is a continuing breach. Under cross examination she stated that she got her first GMS contract after she had been appointed to the respondent and she had at that time a salaried position in the practice. When she became a partner, she acquired her own GMS list; it was not simply a subdivision of the previous practice list. She also confirmed that all practice income is the subject of a single return to the Revenue Commissioners and that she does not claim travelling expenses from the practice for her travel to work for the respondent. In relation to her paid maternity leave she confirmed that she was in receipt of payment under both the GMS scheme and from the respondent, although the former does not fully cover the costs arising from her absence. She accepted that any GP may apply for maternity leave under the GMS agreement. The provision in relation to annual leave was similar to maternity leave and in the course of her leave she receives additional payment to cover a locum. She accepted that the GMS payment did not convey employee i.e. contract of service status on her. Also, when she is on annual or maternity leave she is fully on leave from the respondent’s business. The complainant also accepted that her contract stated that she would not be an employee of the respondent. She also replied to counsel for the respondent that her only management relationship for the purpose of her work with the respondent was to the Programme Director, and with an administrative assistant for relevant matters. |
Summary of Respondent’s Case:
The respondent replies initially that the complaints fall outside the time limits for making a complaint. The Workplace Relations Act 2015 amended the Terms of Employment (Information) Act, 1994 in a way that is significant for this complaint. Under the original provisions of the Act a complainant could make a complaint at any time following the alleged breach and up to six months after the termination of their employment. However, section 41 of the Act of 2015 provides at subsection (6) that an Adjudication Officer shall not entertain a complaint if it has been presented after the expiry of six months beginning on the date of contravention to which the complaint relates. Therefore, the complaint has not been made within those statutory time limits. Without prejudice to that submission, the respondent says that the complainant does not have a contract of service and is engaged on a contract for services. The respondent submits (through cross examination of the complainant) that the work carried out for the respondent is an extension of the work of her private practice. It states that the case made on the payroll and payment system is not definitive; it is not determinative either way and that the decision to grant her paid maternity leave was not made by the respondent. Her contract is clearly a contract for services and her entire claim relies on her PAYE and leave status. The respondent made legal submissions on the various legal tests to be applied in determining employment status, noting that, as held in Minister for Agriculture and Food v Barry & others [2009] 1 IR 215 no single test is definitive, and the various tests are potential aids to identifying the nature of the working relationship; a view endorsed in the Supreme Court. This approach is underscored by the emergence of the ‘multi-factorial’ test applied in O’Coindealbhain v Inspector of Taxes v Mooney [1990] 1 IR 442 and other cases. The respondent repeats that the complainant is not an employee. The role undertaken with the respondent is no more than an extension of her role as a private practitioner and self-employed person. |
Findings and Conclusions:
Preliminary Issue; Time limits. The decision in ADJ-9820 sets out an interpretation of the legal position in relation specifically to the Terms of Employment (Information) Act 1994. It has not been appealed to the Labour Court and has been followed by this Adjudicator in ADJ-19368 and others as a correct statement of the law. The following appears in that Decision (ADJ 9820). Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.
Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.
The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.
If the respondent’s submission is correct, section 7(1) is superfluous.
This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.
While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.
First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.
Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.
Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.
Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.
For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.
The contravention of section 3 is a subsisting contravention.
If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.
Accordingly, I adopt and apply this to the current complaint and I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within jurisdiction from the point of view of time limits. Turning to the substantive matter, and here I follow my decision in ADJ-19368 insofar as the same facts apply (as for the most part they do with only small or insignificant divergence) and initially to the submission by the respondent that, as there is a document given to the complainant which partly complies with the requirements of the Act it is unnecessary to make a finding in relation to the employment status. The respondent submitted that only some details required by section 3 (1) (c), (j) and (k) of the Terms of Employment (Information) Act were missing. These relate the employee’s place of work, terms related to paid leave and sick leave. This argument might have some validity in a more general industrial relations context. Adjudication Officers may only make a decision on a complaint that is validly before them and within their jurisdiction (unless it comes within the more flexible parameters of the Industrial Relations Act, 1969). If a person does not have legal status to bring a complaint in the first place, then by definition it is not possible to make a decision (that is to say a formal ‘Decision’ under the Workplace Relations Act, 2015) whether there has been compliance with its provisions, which, after all derives only from their entitlement to make that complaint. Accordingly, I reject that argument and find that it is necessary to make a decision on the nature of the contract. If, having decided that issue, and activated a complainant’s right to make a complaint under the Act, the extent of any compliance with the requirements then becomes an issue again. As the respondent noted there are a number of tests to determine whether a person is engaged on a contract of employment (‘of service’) or alternatively is what is generally referred to as ‘a contractor’ (engaged on ‘a contract for services’). Some are decisive in either direction, some are more indicative. As noted in the respondent’s submission there is no single pass/fail type test which will determine a complainant’s status. In the leading UK case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number of tests were formulated. 1) Does the person performing the services supply her own equipment? 2) Can he hire her own helpers? 3) Does he carry any financial risks and to what extent? 4) What opportunity does he have to make a profit? 5) To what extent does he carry the responsibility for investment/management.
The Revenue Commissioners of Ireland have outlined similar tests in their Code of Practice for Determining Employment or Self Employment. These relate to whether the employee; 1) Is under the control of another person who directs as to how, when and here the work is to be carried out, 2) Supplies labour only, 3) Received a fixed wage 4) Cannot subcontract the work 5) Does not supply materials for the job 6) Does not provide equipment other than small tools of the trade 7) Is not exposed to personal financial risk in carrying out the work 8) Works set hours or a given number of hours
While determining the status of a contract of service has given rise to much legal difficulty, and especially more recently in the context of the so called ‘gig economy’ it will be obvious from the Revenue Commissioner indicators that the complainant comfortably meets each of the criteria required for a contract of service. Every single one of the above indicators can be answered in the affirmative in respect of the complainant. I do not accept the contention of the respondent made in summing up that the complainant was relying on her PAYE status and leave entitlements either solely or mainly. She was paid a fortnightly salary and nothing she could do would alter her earnings. The respondent supplied all the necessary materials. The complainant in this case presents regularly at the place of work, in circumstances generally controlled by the respondent although she has some flexibility in this, in rather the way a university lecturer might. Conversely, the indicators in the Market Investigations case which go to define a contract for services are all conspicuously inapplicable. The respondent sought to connect the complainant’s other, self-employed work activities to her role with the respondent, and the relationship between the practice income and that from the respondent. Again, the relevance of this is to be determined by reference to the tests above and the actual nature of the complainant’s activity for the duration of her engagement with the respondent. The fact that the complainant may return income from the respondent to her private practise, for example does not affect that engagement; she is free to dispose of her taxed income however she wishes. In Hall (Inspector of Taxes) v Lorimer [1994] IRLR 171 the Court endorsed an explanation approved by the lower court (whose judgement was on appeal to it); ‘In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.’ Applying this approach, I have no hesitation in concluding that the complainant met the criteria for the former; a contract of service and falls within the jurisdiction of the Terms of Employment) Information) Act 1994. As for the submission that, although not obliged to do so the respondent did in fact, accidentally, (if partially) meet the requirements of the Act by means of the provision of an outline of the post’s duties produced for the purposes of recruitment to the post, it matters little, certainly in terms of any sanction, and not at all in terms of the residual (if main) case regarding the entitlement of the complainant to the statement. Accordingly, I uphold the complaint and find that the complainant works under a contract of service and is entitled to be given a statement of her terms of employment that complies with the requirements of the Terms of Employment (Information) Act 1994. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I uphold complaint CA-00004314-001. I order the respondent to provide the complainant with a statement in compliance with Section 3 of the Terms of Employment (Information) Act 1994 and award the complainant €1,500.00 for the breach of her rights under the Act. |
Dated: 20/08/2019
Workplace Relations Commission Adjudication Officer: