SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014
HEALTH SERVICE EXECUTIVE
(REPRESENTED BY TOM MALLON B.L. INSTRUCTED BY PHILLIP LEE SOLICITORS)
- AND -
DR SIOBHAN O'KELLY
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer Decision No ADJ-00016102
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of theTerms of Employment (Information) Act 1994 to 2014. A Labour Court hearing took place on 6th August, 2019.
The following is the Determination of the Court:-
This is an appeal by HSE against the Decision of an Adjudication Officer under the Terms of Employment (Information) Acts, 1994 to 2015 (‘the Acts’) in a claim made under the Acts by Dr Síobhan O’Kelly.
For ease of reference, the parties are are given the same designation as they had at first instance. Hence, Dr Síobhan O’Kelly is referred to as “the Complainant” and HSE is referred to as “the Respondent”.
The Adjudication Officer found in the Complainant’s favour and awarded her €4,000 in compensation for the breach of the Acts.
The Complainant has been an Assistant Programme Director with the HSE Dublin Northeast GP Training Scheme since 5th October 2011. She was furnished with Contracts for Service in 2011 and 2012. She referred her claim under the Acts to the Workplace Relations Commission on 1stAugust 2018, seeking written terms and conditions of her employment.
Summary of The Complainant’s case
The Complainant, who was unrepresented, said that the reason for her bringing her complaint is to have her contractual relationship with the Respondent determined as an employee of the Respondent, on a contract of service. She explained that she required this as she and her colleagues, have been informed by the Irish College of General Practitioners (ICGP) that there is a process underway to transfer aspects of the GP Training from the HSE to the ICGP, including the work that she is currently engaged in. She said that she is aware that the Respondent does not consider that she and her colleagues are employees. She said that without written terms of employment she is in a more vulnerable position, in light of the ongoing negotiations.
The Complainant gave details to the Court why she considered herself to be an employee of the Respondent.
Summary of The Respondent’s Case
Mr Tom Mallon, B.L., instructed by Philip Lee Solicitors, on behalf of the Respondent, denied that the Complainant was an employee of the Respondent. He submitted,inter alia,that it was an misuse of process to make a claim pursuant to the provisions of the Acts merely for the purposes of obtaining a declaration of employment status.
Counsel referred to Section 3 of the Acts which requires an employer to give to an employee a statement in writing containing the information set out in that section. He said that there is no formula or specific structure required on the giving of that information and argued that it could be contained in any appropriate format. On that basis, he contended that the documentation supplied to the Complainant in October 2011 & 2012, entitled “Contract for Service - Assistant Programme Director” was in substantial compliance with the statutory requirement.
Conclusion of the Court
The Court had been informed of a dispute between the Complainant, her colleagues (represented by the IMO) and the HSE which concerns the continuation of the work the Complainant is currently doing. That is not the dispute which is before the Court. The Complainant has openly informed the Court that the reason for her claim is to have the Court classify her as an employee under a contract of service, for the sole purpose of that dispute. Counsel for the Respondent submitted that the Complainant’s claim before the Court amounts to an misuse of its time and resources and should not be facilitated.
It is not the function of the Court to interfere in a dispute which is not before it. Rather, the role of the Court in a complaint under the Acts is to determine if the provision of the Acts have been complied with.
Having examined the Contract for Service documents supplied to the Court, the Court notes that the details of her contractual relationship with the Respondent, outline in writing the terms and conditions of her engagement and concurs with Counsel’s view that they substantially comply with the provisions of Section 3 of the Acts.
The Court notes that the Complainant is anxious to receive written details of the changes which have taken place in her terms of engagement and seeks to have updated written details supplied to her. Mr Mallon gave a commitment to the Court that such details will be supplied in writing to the Complainant with immediate effect.
The Court finds that the Respondent was not in breach of the Acts, the appeal succeeds, and the Adjudication Officer’s Decision is overturned.
The Court so Determines
Signed on behalf of the Labour Court
7th August 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.